2. FMLA Basics Entitles an eligible employee employed by a covered employer to take up to 12 weeks of unpaid leave in any 12 month period for the birth and care of a new-born child, for the placement of a child for adoption or foster care, or to care for employee, employee’s child, spouse or parent with serious health condition When FMLA leave is taken, eligible employee is to be restored to the same or an equivalent position with equivalent pay, benefits, and working conditions upon return from leave
3. FMLA Basics Employer must continue to maintain health benefits for employee on FMLA Leave as if employee had not gone on leave Employee must provide employer 30 days advance notice of the foreseeable need for leave or such notice as is practicable where leave will begin in less than 30 days Employer entitled to require employee to provide certification from a health care provider to substantiate that the leave is for an FMLA qualifying reason
4. FMLA Basics Enforcement of FMLA is delegated to the U.S. Department of Labor which can investigate and file complaints Prohibition on an employer from interfering with or restraining or denying the exercise or attempted exercise of any right under the FMLA Prohibition on discrimination against an employee who has instituted or participated in a proceeding relating to any right under the FMLA
5. FMLA and the Department of Labor DOL prescribes regulations on how FMLA should be interpreted DOL can handle investigations as with the FLSA Employers are required to keep and maintain its records pertaining to compliance with the FMLA Employers are required to post in a conspicuous location a notice for employees explaining the provisions of the FMLA and how to file administrative complaints alleging FMLA violations
6. Who is Employer Covered Under FMLA Employer must be engaged in commerce in any industry or activity affecting commerce; and Employer must employ 50 or more employees for each working day during 20 or more calendar workweeks in the current or preceding calendar year 50 or more employees is based upon employers payroll and includes FT, PT employees and those who are employed but on some type of leave “Bona Fide” Independent contractors are not included in the calculation
7. Who is Employer Covered Under FMLAIntegrated Employers Separate entities (i.e. subsidiaries) under the FMLA will be considered a single employer under the FMLA if the entities meet the “INTEGRATED EMPLOYER TEST.” Under the Integrated Employer Test the entire relationship between the entities is considered including: Common Management or Boards and Directors; Common Offices, bank accounts, recordkeeping, equipment; Common ownership and financial control
8. Who is Employer Covered Under FMLAJoint Employers Where two or more businesses exercise some level of control over an employee they may be joint employers under the FMLA If Employee does work that benefits more than one employer, joint employment relationship might be found where: There is agreement between employers to share an employees services; The employers share direct or indirect control over employee Also a fact intensive inquiry
9. Who is Employer Covered Under FMLASuccessors in Interest The FMLA includes successors in interest Fact intensive inquiry but some factors include: Continuity of same business operations; Use of same office or plant Continuity of workforce Similar jobs, working conditions and supervisors
10. Who is Employer Covered Under FMLASuccessors in Interest Similar machinery, equipment, etc. Similar products or services Where employer is successor in interest, they are required to count employees service to prior company for FMLA qualification
11. Who is Employer Covered Under FMLAIndividuals As with FLSA, there can also be individual coverage under FMLA An individual is a covered employer under the FMLA and liable where it is a person who act, directly or indirectly in the interest of the employer As with FLSA, many courts have held individuals to be liable for violations of FMLA, including corporate officers, human resource directors and managers
12. Who is Covered Employee Under FMLA An Eligible Employee Under the FMLA Must have worked for a covered employer for at least 12 months; Must have worked for at least 1,250 hours during the 12 month period immediately preceding the date leave is taken; and At a work-site where the employer employs at least 50 employees
13. Who is Covered Employee Under FMLAMeasuring 1,250 Hours of Service Same principles as under FLSA, is number of hours worked by employee under the FLSA Hours not worked such as leave time do not count, but overtime hours worked would count If employer does not maintain records for employee as required by FLSA, employer has burden of showing that employee has not worked the required number of hours
14. Types of Leave Provided for by FMLA Because of birth of a son or daughter and for care of a newborn child; Because of placement of a son or daughter with the employee for adoption or foster care; To care for relatives with a Serious Health Condition Because of employee’s own Serious Health Condition A covered employer also must grant an eligible employee who is a spouse, son, daughter, parent, or next of kin of a current member of the Armed Forces, including a member of the National Guard or Reserves, with a serious injury or illness up to a total of 26 workweeks of unpaid leave during a “single 12-month period” to care for the service member.
15. Types of FMLA LeaveBirth or Care of Newborn Entitlement applies to both male and female employees who need leave for newborn child Before birth of child, mother may take leave for serious health condition due to pregnancy and father may take leave to care for wife’s pregnancy related condition Employee’s entitlement this leave for newborn expires 12 months after newborn’s birth If married mother and father work for same employer, they only get total of 12 weeks leave
16. Types of FMLA LeaveAdoption or Foster Care Placement Leave to be provided to leave to employee to facilitate adoption or fostercare Leave should be granted for counseling sessions, consults with legal counsel, meeting with birth parents and for “bonding time” with the new child As with pregnancy, leave terminates 12 months after placement of child through adoption or fostercare If married parents both work for same employer, only 12 weeks total leave provided to both
17. Types of FMLANew Development in Birth or Adoption The U.S. Department of Labor (DOL) recently issued an Administrative Interpretation (AI) clarifying its opinion that employees are entitled to take Family and Medical Leave Act (FMLA) leave for birth, bonding or to care for the child of a domestic partner or same-sex domestic partner, as well as other children for whom an employee has responsibility for day-to-day care or financial responsibility, even though the employee has no biological or legal relationship with the child.
18. Types of FMLA LeaveSerious Health Condition of Family Member Applies to care for spouse, son, daughter or parent of the employee Parent is defined to include adoptive, step and foster parents (not in-laws) Son or daughter is defined to include a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.
19. Types of FMLA LeaveSerious Health Condition of Family Member Employer may require employee to provide reasonable documentation or statement of family relationship (i.e. birth certificate or court order) “to care for” is not defined, but employer may require employee to provide medical certification of what care is needed for relative of employee
20. Types of FMLA LeaveEmployee’s Own Serious Health Condition Employee must establish both a serious health condition and the inability to perform the essential functions of a particular job An employee is “unable to perform the functions of the position” where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee's position within the meaning of the Americans with Disabilities Act (ADA). Employer may require employee to provide medical certification where health care provider sets forth which essential functions can or can’t be performed.
21. What is a Serious Health Condition? For purposes of FMLA, “serious health condition” entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity
22. What is a Serious Health Condition? Continuing Treatment by Provider A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition; Any period of incapacity due to pregnancy, or for prenatal care. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective(i.e. Alzheimers)
23. What is a Serious Health Condition?Continuing Treatment by Provider Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider (i.e. surgery after an accident or injury, chemotherapy, radiation, severe arthriitis and/or kidney disease)
24. What is a Serious Health Condition?Leave for Substance Abuse Treatment Substance abuse may be a serious health condition. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. Absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave. An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse. The employer may not take action against an employee who is providing care for a covered family member receiving treatment for substance abuse.
25. Are Cosmetic Surgeries Covered Under FMLA? Generally not considered serious health conditions, but if medical complications arise can become serious health conditions subject to FMLA
26. What is a Serious Health Condition?Mental Health Conditions Regulations provide that mental illness resulting from stress or allergies may be covered under FMLA if other conditions of FMLA are met Employee must also be granted leave to care for family member suffering from mental illness
27. Length and Scheduling of FMLA Leave Employee is Entitled to 12 workweeks of FMLA leave in a 12 month period The length of FMLA leave may provide more time pursuant to state laws, collective bargaining agreements or more generous employer policies
28. Length and Scheduling of FMLA LeaveMeasuring the 12 Months Calendar year; Any fixed 12 month period such as fiscal year or employee anniversary date; A “rolling” 12 month period measured backward from the date the employee uses any FMLA leave; Except as otherwise may be required by state laws Whatever method is used must be uniformly applied If changed employees must be given at least 60 days notice
29. Intermittent and Reduced Schedule FMLA Leave Employee may take FMLA intermittently, a day or hour at a time Employee may take FMLA by working a reduced schedule (i.e. going from full time to part time) Employee may only take intermittent leave without employer approval if needed to care for serious health condition of self or family members Employee may take intermittent leave for birth or adoption only if approved by employer
30. Intermittent and Reduced Schedule FMLA Leave Employee’s eligibility for intermittent leave is determined when the leave commences, employee does not need to re-qualify each time intermittent leave is sought Employer may ask employee to advise of reasons for intermittent leave and to give schedule of medical treatments Employer may require medical certification which includes probable duration of condition, duration of required intermittent leave, any chronic conditions, likely duration of incapacity New certifications may not be requested for each absence
31. Intermittent and Reduced Schedule FMLA Leave Employer may require employee to schedule medical treatments in manner that will not unduly interfere with operations of employer Employer MAY NOT INSIST THAT EMPLOYEE PROVIDE A FIRM SCHEDULE of when he/she will use intermittent leave
32. Intermittent and Reduced Schedule FMLA Leave Only the amount of nonwork time actually taken by employee may be counted towards FMLA For instance, if employee is working from home, whether authorized or not by employer, this is not considered FMLA time Employer may not impose limits on the increments of time taken for intermittent leave, for instance, employer may not require employee to take at least one half day at a time
33. Intermittent and Reduced Schedule FMLA Leave If an employee requires intermittent leave and meets the criteria, employer may not deny it even if a hardship However, employer may transfer employee to an alternative position that better enables employer to accommodate the leave Job Transfer need not have equivalent duties, but must provide pay and benefits equivalent to employee’s original position Employer may not eliminate benefits to employee even if leave reduces employee to part time and part time employees would not normally receive these benefits
34. Intermittent and Reduced Schedule FMLA Leave Job transfer to accommodate intermittent leave may not be done to dissuade employee from taking leave Job transfer to accommodate intermittent leave may not work a hardship on employee Once employee no longer needs intermittent leave, employer must reinstate employee to same or equivalent job as when leave commenced
35. FMLA Notices and Certifications Must post FMLA rights for employees If employer has employee handbook, it must include FMLA rights, responsibilities and policies of employer. For instance, if employer requires a fitness for duty certification to return to work the handbook should explain this policy If no employee handbook, employer must provide employees with written guidance on their rights under the FMLA Where employer fails to post required FMLA notice, it may not take action against employee who does not provide advance notice of need for leave
36. FMLA Notices and CertificationNotice by Employee of Need for Leave If foreseeable by employee, at least 30 days advance notice If leave unforeseeable by employee, as soon as practicable In giving notice of need for leave, employee need not mention the FMLA but must give employer information to make it aware that it may be FMLA qualifying-at least a possible FMLA leave situation If some sort of need for leave is not requested, employer need not furnish it
37. FMLA Notices and CertificationEmployer Response to Notice Employer must notify employee that leave being sought will be designated and counted as FMLA leave Once leave is requested employer must provide employee with the employee’s obligations under FMLA including: whether leave will be counted against FMLA; any requirements for medical certifications; employee’s right to take leave as paid leave; whether employee will be required to pay health insurance premiums; whether employer will require fitness for duty certification before return to work; the employee’s right to be restored to same position upon return; employees liability for repayment of health insurance premiums during leave
38. FMLA Notices and CertificationEmployer Response to Notice Employers response must be given to employee in plain language and as promptly as possible
39. FMLA Notices and CertificationMedical Certifications and other Notices FMLA permits but does not require employers to seek medical certifications to support a serious health condition FMLA permits but does not require an employer to obtain fitness for duty certifications, documentation of family relationships and/or notices of intent to return to work DOL has form for medical certifications, employer can use form or one requesting same basic information
40. FMLA Notices and CertificationMedical Certifications and other Notices In Medical Certification Employer may only obtain information relating to particular condition for which leave is sought May not obtain medical records If there is question of validity of medical certification, circumstances may permit employer to seek second and even third health care provider opinions If employee is on leave for extended time or takes leave intermittently, employer may require recertification of medical condition on “reasonable basis” (generally not more often than every 30 days)
41. Pay and Benefits During LeaveSubstitution of Paid Leave Employee may request that accrued paid leave such as vacation or PTO be used in lieu of FMLA IF Employee does not elect it Employer may require employee to use paid leave time for FMLA
42. Pay and Benefits During LeaveMaintenance of Benefits Employer is required to maintain group health insurance coverage for employee on FMLA leave on same terms and condition as if employee had stayed at work Employer must continue to pay portion of premium previously paid, but needs to let employee know of what payments must be paid during FMLA leave In most cases obligation to maintain benefits ceases upon termination of FMLA leave Non health benefits must also be continued during FMLA leave
43. Restoration of Employee after FMLA Leave Employees shall be entitled to return to former position held when FMLA was taken; or Employees must be restored to equivalent position with equivalent benefits, pay and other terms and conditions of employment Employee is entitled to such reinstatement even if the employee has been replaced or his/her position has been restructured to accommodate the employee’s absence
44. Restoration of Employee after FMLA Leave Restoration is not absolute however, for instance, employee can be laid off if lay off would have resulted regardless of taking of FMLA Leave Poor performance or misconduct prior to leave may provide basis for denial of restoration rights provided that employment would not have continued if FMLA leave had not occurred
45. Restoration of Employee after FMLA Leave If employee held other job during FMLA leave, not necessarily a basis for termination upon return If employee advises employer of intent not to return to work, employer may terminate employee Employer may refuse reinstatement until after receipt of fitness for duty certification so long as this is uniformly applied policy If Employee fraudulently obtains FMLA leave (ie false medical information) this may be basis for refusing reinstatement
46. Restoration of Employee after FMLA LeaveExpiration of 12 Weeks FMLA does not require employer to restore employees who are unwilling or unable to return to work and perform the essential responsibilities of their position upon return
47. Interference Under the FMLA No employer may interfere with, restrain or deny the exercise of or the attempt to exercise any right provided under the FMLA The “Interference Theory” Easier type of case to prove by employer, employer must only show that he/she was entitled to the benefit denied
48. Retaliation Under the FMLA FMLA makes it unlawful for an employer to discharge or in any manner discriminate against any individual for opposing any practice made unlawful by the FMLA An employer may not use employee’s FMLA use as a negative factor in making any employment decision Uses McDonnnel Douglas test used in discrimination cases including proof of pretext by employer
50. Ryan Boddicker v. Esurance, Inc.U.S.D.C. South Dakota (12/15/10) FMLA interference includes not only refusing to authorize FMLA but discouraging an employee from using FMLA If employer has chilled the employee’s exercise of FMLA rights, there may be an interference claim Found possible claim for interference claim where supervisor made statements about not getting his work behind, and phone call from supervisor asking if he wanted to resign
51. Perry Picarazzi v. John Crane, Inc.U.S.D.C S.D. Texas (2/7/11) Involved employee FMLA for substance abuse treatment Employer assessed absences against employee for days he was on leave but not actually under a healthcare provider Employee was given impression that he was being covered by FMLA for days when he was not actually at healthcare facility, issue of whether employee reasonably relied upon representations of employer Employer claimed also medical certification was insufficient but did not give Employee 7 days to cure issue or advise of consequences of failure to complete medical certification form
52. Parsons v. Principal Life Insurance Co.686 F.Supp.2d 906 (S.D. Iowa 2010) Employer claimed incomplete medical certification Employer was required to give employee reasonable opportunity to fix deficiencies in medical certification form Employer failed to give opportunity to fix, and summarily denied FMLA leave Case also involves employer absence reporting policy..whileemloyer may require employee to report in on periodic basis, employer must also consider all of facts and circumstances (i.e. requiring employee to call in every day of incapacitated for a number of days)
53. Jacqueline Reid v. Hospira, Inc.U.S.D.C E.D. North Carolina (12/13/10) Court found employee did not give sufficient notice of need for leave to employer Employee need not state FMLA but only state that leave is needed then obligations shift to employer In this case employee was injured but never let employer know of her need for leave so FMLA was properly refused
54. Schrieber v. Federal Express Corp.698 F.Supp.2d 1266 (N.D. Okl. 2010) Addresses whether extending a disciplinary period for the length of time an employee is on FMLA constitutes a “negative factor” in violation of the FMLA Employer was allowed to extend disciplinary period out for one year because of FMLA so employer could fully evaluate Plaintiff’s performance during a one year span Employer also correct in refusing to allow employer who could not perform the essential functions of his job intermittent leave Intermittent leave for those who can perform essential functions of job
55. Jackson v. Jernberg Industries677 F.Supp. 2d 1042 (N.D. Ill. 2010) Evaluated employer’s “doctors note policy” Whether a doctors note policy is considered an impermissible recertification Court held employer’s doctors note policy was FMLA interference Requiring a doctors note for each absence discouraged employee from taking his FMLA leave, policy was too burdensome on employees
56. Righi v. SMC Corporation of America(7th Cir. 2/14/ 11) Employee gave proper notice of need for leave where vague e-mail references “possibility” that he might want to use FMLA leave to take care of ailing mother However, court agreed that employee violated FMLA policy by not responding to employer calls or otherwise contacting employer to let them know about plans to return to work Employee asked for couple of days off but did not return phone calls for a full week.
57. Krutzig v. Pulte Home Corp.602 F.3d 1231 (11th Cir 2010) Clear that employer can terminate employee that had taken FMLA leave if can show that employee would have otherwise been terminated What about termination of employee approved for FMLA leave but who had not yet taken it? Court held that right to take FMLA leave is also not absolute and employee can be dismissed prior to FMLA leave if employee would have been dismissed regardless of seeking FMLA
58. Johnny Chappell v. The Bilco CompanyU.S.D.C. E.D. Ark. 1/3/11 Employer permitted to suspend employee where he failed to comply with employer call in policy Under FMLA Employer may require employee to periodically call in on status and return to work status Also found that he was not seeking leave for serious health condition of mother, “FMLA does not provide for leave to cover any activity intended to assist a family member”
59. Lee Elder v. D & J EnterprisesU.S.D.C. M.D. Al. (2/10/11) Employee with arthritis Employer was made aware of physical condition and need for tests, this was considered sufficient notice to Employer of need for FMLA Found issues of fact as to whether employer terminated employee due to FMLA
60. Regina Twerllinger v. Howard MemorialU.S. D.C. W.D. Ark. 2/24/11 Supervisor contacted employee on weekly basis after back surgery to gage return to work Employee asked if she was in danger of losing her job and supervisor said I would return to work ASAP Employee returned to work a week early and thereafter was terminated for allegedly stealing from other employee Court found this could have been interference claim by employer
