Labor & Employment Law Articles

Enacted in 1993, the FMLA provides eligible employees up to 12 weeks of unpaid leave in any rolling 12-month period:  1) for the birth or adoption of a child; 2) to care for a parent, child or spouse with a serious medical condition; or 3) if the employee has a serious medical condition of his/her own.

On November 17, 2008, the United States Department of Labor issued its revised rules and regulations interpreting the Family and Medical Leave Act (“FMLA”).  These regulations go into effect January 16, 2009.  Among the highlights of these new rules are:

• To be eligible for FMLA leave, an employee must have been with his/her employer for at least 12 months and have at least 1,250 hours of service in the 12-month period preceding the leave.  The regulations state that, although the 12 months of employment need not be consecutive, employment prior to a continuous break in service of seven years or more need not be counted unless it is due to military service or a period of approved absence.

• Employees who take intermittent FMLA leave must make a Areasonable effort@ to schedule such leave so as not to disrupt the employer=s operations.  For example, employees who require intermittent leave for periodic medical attention should schedule it during days/times when it is least burdensome on the employer. 

• For the purpose of establishing a serious health condition, an employee is receiving “continuing treatment” if in connection with a period of incapacity of more than three consecutive days, the employee has:  (i) two visits to a health care provider within thirty days of the beginning of the period of incapacity (unless there are extenuating circumstances) or (ii) one visit to a health care provider and a regimen of continuing treatment, such as a prescription.  In both cases, the first in-person treatment must occur within seven days of the first day of incapacity.  The health care provider, not the employee or patient, decides if a second visit during the 30-day period is required.

• Time spent in "light duty" work does not count against an employee's FMLA leave entitlement, and the employee's right to job restoration is held in abeyance during the light-duty period.

• An employer may disqualify an employee from an achievement bonus, such as for perfect attendance, where the employee has not met the goal on account of FMLA leave.

• If an employee’s health insurance lapses due to his/her failure to pay his/her portion of the premium while on FMLA leave, the employer has a duty to reinstate the employee=s health insurance when the employee returns to work.  If the employer fails to reinstate the insurance, it can be liable for losses suffered by the employee as a result.

• All covered employers are required to post the prescribed FMLA notice in the workplace, even if they do not have any eligible employees.  Employee handbooks must contain FMLA policies.  Companies that do not have a handbook, however, will be required to deliver a written FMLA notice at the time of hire.  This notice shall notify employees of their FMLA rights and responsibilities. 

• When an employee requests FMLA leave, an employer has five days to notify the employee if he/she is eligible for leave.  If the employee is eligible for FMLA leave, the employer must also provide the employee with written notice of his/her “Rights and Responsibilities” under the FMLA at this time.  If an employer determines an employee is ineligible for FMLA leave, the employer must provide the employee, in writing, with at least one reason why he/she is not eligible.

• Employees whose employer fails to notify them as to whether or not they are eligible for leave may be entitled to lost compensation and benefits, as well as other remedies, if the employee can show he/she was harmed by the employer’s failure to provide the required notice.

• If an employer is going to seek medical certification for the leave, the employer should provide a copy of the medical certification form along with the “eligibility notice.”   The employee has 15 days to provide the medical certification.  Employers should provide a description of the employee’s essential job functions so that the health care provider can properly address the employee’s fitness to return to work.

• A medical certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed, or if the information provided is “vague, ambiguous or non-responsive.”  In such instances, the employer must provide the employee with written notice stating what additional information is necessary and allow the employee seven days to provide it. 

• Employers are now allowed to directly contact the employee=s health care provider to authenticate and clarify the medical certification.  Such contact by the employer can only be made by a health care provider, a human resources professional, a leave administrator or a management official.  The employee=s direct supervisor is not permitted to contact the employee=s health care provider.

• Once an employer has received sufficient information to determine whether an employee’s leave is covered by the FMLA, the employer must notify the employee within five business days that the leave is or is not designated as FMLA leave.  This is known as “designation notice.”

• On January 28, 2008 President Bush signed into law the National Defense Authorization Act for 2008 (ANDAA@).  The first provision, which was effective January 28, 2008, provided up to 26 weeks of protected unpaid leave in a single 12-month period to the spouse, child, parent, or next-of-kin (i.e., closest blood relative) of a covered service member with a serious injury or illness incurred during active duty.  The second provision, which becomes effective on January 16, 2009, allows an eligible employee to take up to 12 weeks of leave in a 12-month period as a result of a Aqualifying exigency@ when the employee=s spouse, son, daughter or parent is on active duty or has been notified of an impending call to duty in support of a Acontingency operation or has just returned from such duty.@  The regulations identify the following eight “qualifying exigencies”:

• (1) Short Notice Deployment;
• (2) Military Events and Related Activities;
• (3) Childcare and School Activities – when, as a result of a covered military member’s active duty or call to active duty status, the covered employee is required to arrange for alternative childcare arrangements, provide childcare on an urgent, immediate basis, enroll or transfer a child to a new school or daycare center, or attend meetings with staff at a school or daycare facility;
• (4) Financial and Legal Arrangements – a covered employee may take leave to make financial or legal arrangements that address the covered military member’s absence while on active duty or call to active duty status;
• (5) Counseling – for either the employee, the covered military member, or the military member’s child;
• (6) Rest and Recuperation – covered employees may take up to five days of leave to spend with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment.  The employee is entitled to five days of leave for each instance of rest and recuperation leave up to a maximum of 12 weeks in a 12-month period;
• (7) Post-Deployment Activities – such as arrival ceremonies and reintegration briefings and events; or
• (8) Additional Activities – if agreed upon by the employer and the employee. 

For more information regarding the new FMLA rules and regulations, please visit the Department of Labor website or contact us directly.