|
Download |
EEO LAW BASICS
CHAPTER 7
FAMILY AND MEDICAL LEAVE ACT (FMLA)
7-A | WHO IS COVERED UNDER THE FMLA, AND WHEN IS THE RIGHT TO A LEAVE TRIGGERED?
The
FMLA requires covered employers (those with 50 or more employees) to provide eligible employees (those who have been employed with their current employer for at least 12 months and who have worked at least 1250 hours in the last 12 months) with up to 12 weeks
11 of unpaid
leave each year for:
1) The employee’s own serious health condition which makes the employee unable to perform the essential functions of her job;
a) A serious health condition12 is an illness, injury, or physical or mental condition that involves either:
(1) inpatient care (an overnight stay) in a hospital or other medical facility, including any period of incapacity (inability to work, attend school or perform other daily activities) or for subsequent treatment in connection with such care; or,
(2) continuing treatment by a healthcare provider13 consisting of any of the following:
(a) a period of incapacity of more than 3 consecutive days and subsequent treatment or incapacity relating to the same condition that also involves:
(i) treatment 2 or more times by a health care provider, or
(ii) at least 1 treatment by a health care provider that also results in a regimen continuing treatment;
(3) any period of incapacity due to pregnancy or for prenatal care;
(4) any period of incapacity or treatment for incapacity due to a chronic serious health condition; or,
(5) any period of absence to receive multiple treatments for restorative surgery or for a condition that would likely result in incapacity for more than 3 days without medical intervention.
2) The care of a spouse, son, daughter or parent of the employee who has a serious health
condition;
3) The birth and first year care of the employee’s child; and,
4) The placement with the employee of a son or daughter through adoption or foster care.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
Footnotes
11 Employer is not obligated to hold job open beyond the 12-week period when employee unable to return at the end of the period.
12 Serious health condition does not include occasional days taken for the flu or for some other purpose, unless all of the conditions for a serious health condition are met. This is significant because if the employer allows such occasional sick leave, that leave may not be counted against as employee’s 12 week FMLA entitlement.
13 Includes a doctor of medicine or osteopathy who is authorized to practice medicine or surgery in the state or a podiatrist, dentist, clinical psychologist, optometrist, chiropractor (in limited circumstances), nurse practitioner authorized to practice in state.
7-B | WHAT IS AN FMLA-QUALIFYING EVENT?
1) Employers are charged with determining whether the reason for the absence is
FMLA-qualifying.
2) If an employer is on
notice that the reason for the
leave may qualify under the
FMLA, the employer must make further inquiry to make the right determination.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
7-C | WHAT ARE THE EMPLOYEE’S OBLIGATIONS UNDER THE FMLA?
1) The employee is required to provide adequate
notice of his/her need for
FMLA leave in person or by telephone, fax or other electronic means.
a) Foreseeable need for leave
(1) Ask for leave 30 days in advance if foreseeable such as planned medical treatment, child birth or placement
(2) If less than 30 days then notice as soon as practicable (ordinarily 1-2 business days)
b) Unforeseeable need for leave
(1) Ask for leave within 2 days of knowing need for leave
(2) Give notice as soon as practicable
(3) Notice can be given by employee’s representative
2) Information imparted to the employer must be sufficient to reasonably apprise it of the employee’s request to take time off for a serious health
condition.
3) An employee is not required to
expressly assert rights under the Act or even mention the
FMLA to meet his or her obligation to provide
notice.
4) An employee must prove that he/she is afflicted with an
FMLA-qualifying
condition.
5) An employee may be required to periodically report on status.
6) An employee may be required to obtain a fitness-for-duty medical certification prior to returning to work.
a) Certification must be uniformly applied
b) Employee must be on notice of such a requirement
c) Employer must also comply with ADA requirements
d) Employer may deny reinstatement until certification is obtained
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
7-D | WHAT ARE THE EMPLOYER’S OBLIGATIONS UNDER THE FMLA?
1) Notifying Employees of
FMLA Rights and Obligations
a) Notice of rights and obligations must be posted in the workplace.
b) Willful violations of posting requirements may subject an employer to civil penalty of $100 for each separate offense.
c) An employer who fails to post required notice cannot take any adverse action against an employee, including denying FMLA leave, for failing to furnish the employer with advance notice of a need to take FMLA leave.
2) Employee manuals and handbooks, if provided by employer, must contain rights and obligations such as:
a) providing advance notice for foreseeable leave; or
b) providing a medical certification14 of the need for the leave; or
c) providing a return to work certification; or
d) using accrued paid time off as a part of the leave.
3) If an employer has no
written handbooks or policies,
written guidance must be given to the employee setting out all rights and obligations whenever a request for
FMLA leave is made.
4) Notice, however imparted to the employee, should include:
a) that leave will be counted against the employee’s annual FMLA leave entitlement;
b) any requirements regarding medical certification and failure to do so;
c) employee’s right to substitute paid leave and whether the employer will require substitution of paid leave, and conditions regarding substitution;
d) any required premium payments to maintain health benefits and arrangement for payments;
e) any requirement for fitness-for-return-to-duty;
f) employee’s status as a “key employee” and potential consequences;
g) right to restoration to same or equivalent position upon return; and
h) employee’s potential obligation for health premiums paid by employer during leave.
5) Keeping employee medical
records separate and confidential and limiting who may access
records.
6)
FMLA leave may not be counted against the employee in any manner under “no-fault” attendance policies.
7) An employer cannot enforce the employee’s obligation to obtain a medical certification of the need for the
leave unless the employer complied with its notification obligations. An employer must give the employee a “reasonable time” (at least 15 days) to obtain the certification.
8) An employer cannot discipline or terminate employees for taking
FMLA leave.
9) Granting the returning employee the same job or equivalent job
15 with same pay, benefits
16 and terms and
conditions of employment. If the employee fails to return at the end of the period, the right to the job expires.
a) Key employee exception/if reinstatement would cause” substantial and grievous harm”
b) Employee entitled to no greater right to restoration/benefits than if he/she had been continuously employed
c) No restoration is required if leave fraudulently obtained
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
Footnotes
14 When the employer disputes the medical certification, the FMLA permits second and third medical opinions at the employer’s request by health care providers selected by the employer. Such opinions must come from health care providers who do not regularly contract with the employer. The employer may also require periodic recertification no more often than every 30 days, unless there is a requested extension of the leave, a significant change in the circumstances involved in the original certification, or the employer receives information which casts doubt on the continuing validity of the original certification.
The employer must notify the employee if the employer suspects that the medical certification is incomplete, and must give the employee the opportunity to correct the deficiencies. The employer may not directly request additional information from the employee’s health care provider. However, a health care provider representing the employer may contact the employee’s health care provider, with the employee’s permission, to clarify and authenticate the certification.
15 Equivalent position must have the same pay, benefits and working conditions, including privileges and status. It must also involve the same or substantially similar duties and responsibilities.
16 Employer is required to maintain any pre-existing health coverage during the leave and, once leave period has concluded, to reinstate the employee to the same or equivalent position.
7-E | WHAT ARE THE ELEMENTS OF AN FMLA CLAIM?
1) In an interference
claim, the employee must allege:
a) His/her status as an eligible employee;
b) He/she has fulfilled employee obligations under the FMLA, such as notification;
c) The employer has failed to fulfill its statutory obligations under the FMLA; and
d) The employee need only establish entitlement, as the employer’s intent is immaterial.
2) In a retaliation
claim, the employee may seek recovery for a
claim involving asking for or receiving
leave if:
a) The plaintiff availed herself/himself of a protected FMLA right;
b) The plaintiff was adversely affected by an employment decision; and
c) There was a causal connection between a) and b).
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
7-F | WHAT ARE THE DEFENSES TO AN FMLA CLAIM?
1) The employee failed to fulfill his/her obligations under the act.
2) The employee has not worked the required minimum number of hours.
3) The employer honestly believed the employee had abandoned his/her job and that the employee is/was not using the
FMLA leave for its intended purpose.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
7-G | HOW ARE FMLA RIGHTS ENFORCED?
An employee may file private suit within 2 years of alleged
FMLA violation and, if the violation is
willful, within 3 years.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
7-H | WHAT ARE THE REMEDIES UNDER THE FMLA?
1) Damages equal to
back pay, employment benefits, other compensation denied or lost to employee due to violation (plus interest).
2) Additional
damages equaling the
damages in 1) UNLESS the Court determines violation was in
good faith and the employer had reasonable grounds for believing it had not violated the
FMLA.
3) Equitable
relief including employment, reinstatement and promotion, and reimbursement for costs and reasonable attorneys and expert fees.
4) Punitive
damages are not recoverable.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
7-I | HOW ARE FMLA RIGHTS WAIVED?
1) A knowing
waiver is permitted.
2) The
waiver is enforceable pursuant to relevant state
contract law.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
Chapter 7 | EEO Law Basics
