But What Does the FMLA Mean in the Real World?
The bare language of the FMLA raises more questions than it answers. Consequently, over the years, our clients have peppered us with innumerable “what happens when…,” “what about this…” and “how do I tell if…” questions, as they struggled to figure out what they were supposed to do with the FMLA in the real world of employer-employee relations.
Ten years ago, all we (and anyone else) could do was take our best guess. Now, we have a mountain of court decisions and agency regulations and rulings on which to draw. The FMLA has more than a decade under its belt, and in many instances we can now replace guesswork with real answers.
Our experience tells us that this information is most useful if it is distilled into a format that helps employers understand these legal principles in context. For that purpose, we offer our “top twenty” list of FAQ’s for the FMLA – twenty questions and answers that, when properly comprehended and applied through appropriate employee training, can save employers millions of dollars in potential damages.1. I don’t employ 50 employees within a 75-mile radius. Does that mean I don’t have to worry about employees who request this kind of unpaid leave?
You won’t have to worry about FMLA leave, but you will still have a host of other overlapping requirements you will need to consider.
First, various states and municipalities have enacted their own unpaid leave statutes and ordinances, many of which require that employers with less than 50 employees within a 75-mile radius of a single location grant unpaid leave to certain classes of employees. Some grant more than 12 weeks of leave, and other, additional benefits. You must stay apprised of those local requirements.
Second, as is discussed below, in many circumstances an employee with an ADA “disability” may be entitled to unpaid leave as one of the “reasonable accommodations” the ADA mandates, whether or not the FMLA applies.
The upshot is that managers and HR professionals who deal with employees making requests for leave, whether or not their employer maintains a roster of 50 employees, need to be carefully trained in order to avoid a response that can trigger a series of liabilities.2. I’ve heard that I must notify an employee who takes unpaid leave that the leave is being designated as FMLA leave. What does this mean, and what happens if I don’t provide the notification?
The FMLA requires that the employer notify the employee in writing that an absence is being designated as FMLA leave. This is an extremely important, and frequently overlooked requirement. Unless the employer provides this notice, the employee’s leave may not be counted against his or her 12 week FMLA allotment, resulting in the employee gaining an entitlement to additional unpaid leave.
With proper planning, a notice procedure that is compliant with these requirements can be incorporated into the standardized operating procedures of most employers.3. What if the employee has vacation, sick days or other paid leave coming to him or her. Can I require that the employee first exhaust his or her paid leave as part of the 12 weeks of FMLA leave?
Yes. Employers may require that the employee use, accrued paid leave to cover some or all of the FMLA leave the employee wishes to take. That way, you won’t have to deal with 12 weeks of unpaid leave on top of an employee’s accrued right to paid leave. But note: the employee must first be notified in writing that his or her paid leave will be counted against the FMLA leave. Again, standardization and implementation of FMLA employment policies will be the key.4. Can I count time on maternity leave or pregnancy disability leave as FMLA leave?
Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave. But, again, you must properly notify the employee in writing of the designation.5. Does workers' compensation leave count against an employee's FMLA leave entitlement?
It can. FMLA leave and workers' compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and, again, the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.6. Can I require the employee to provide a medical certification, documenting the basis for the FMLA leave request?
Under the FMLA, an employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider. An appropriate form must be used – consult with competent counsel or an HR professional. It is not sufficient to place the medical certification requirement in a manual or handbook; a specific request for this certification must be directed to the employee. The employer must allow the employee at least 15 calendar days to obtain the medical certification.
Caution: the ADA severely restricts an employer’s right to make medical inquiries of an employee seeking an ADA accommodation. A proper FMLA request for a medical certification – i.e., a request made in response to a request for leave, using the proper FMLA forms, without further inquiries -- will not violate the ADA (side note: there are some qualifications pursuant to HIPAA). But if the employee’s request is, in fact, a request for an ADA accommodation (and it is often very difficult to tell the difference, as discussed below), be very careful. Those fielding requests for leave or other accommodations must be properly trained so that the correct procedures are triggered.7. What if I honestly believe that the medical certification provided by the employee is bogus. Can I require a “second opinion”?
Yes, in most cases. Usually, an employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider, and if the two health care providers disagree, there is a procedure to obtain a third, binding opinion. There are specific rules that govern this procedure. Consult competent counsel.8. What if, after the employee goes out on leave, I find out that the employee no longer has a valid reason to stay out of work. Can I do anything about it?
An employer may ask an employee who is on leave reasonable questions to confirm whether the leave qualifies for FMLA purposes, and may require periodic reports on the employee’s status and intent to return to work after leave. An employer can also trigger the “second opinion” procedure discussed above. But there are specific rules that pertain to medical inquiries that must be respected – be careful, and make sure the people doing the inquiring know the do’s and don’ts.9. Is the employee permitted to work while out on FMLA leave?
Employers with established policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave – which is another example of the importance of a well-crafted policy manual. Otherwise, the employer may not restrict an employee’s activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.10. What happens if the employee is unable to return to work after exhausting 12 weeks of leave? Do I have any other obligations?
Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12 month period" no longer have FMLA protections of leave or job restoration.
Caution: the ADA (and an employer’s own short term disability policy) may mandate a different result. Consult competent counsel.11. Suppose the employee wants to return to work after exhausting his or her 12 weeks of FMLA leave, but the employee is not physically able to perform his or her old job. Do I have to find the employee another job?
Under the FMLA, an employee is entitled to return to the same position or to an equivalent position. However, if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condition, the FMLA does not require the employer to reinstate the employee into another, less demanding job.
Caution: the ADA (and an employer’s own short term disability policy) may mandate a different result. Consult competent counsel.12. Do I have to pay bonuses or provide similar “extras” to employees who have been on FMLA leave?
The FMLA requires that employees be restored to the same or an equivalent position. If an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work. The FMLA leave may not be counted against the employee. For example, if an employer offers a perfect attendance bonus and the employee has not missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon returning from FMLA leave.
On the other hand, the FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority. For example, an employee on FMLA leave might not have sufficient sales to qualify for a bonus. The employer is not required to make any special accommodation for this employee because of the FMLA. The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave (as appropriate) are treated.13. What happens if an employee simply requests time off? How do I know if the employee is requesting FMLA leave, or an ADA accommodation, or both, and how should I handle it?
Typically, employees do not label their requests for your convenience – they do not walk in and announce, “I need an ADA accommodation,” or “I’d like to request FMLA leave.” Instead, they tell you, “I need some time off to get an operation,” or “I have to leave early on Fridays to go to therapy,” or “My mother just had a stroke and I have to care for her.”
The managers who initially deal with the employee, and those who make the eventual decision, must be well trained to ask the right questions, and not the wrong questions, in order to decipher whether the employee is asking for an ADA accommodation, FMLA leave, or both. If the employee is not eligible for FMLA leave, or his or her request pertains to an issue that falls outside the FMLA (for instance, it relates to a sick in- law and not a parent), you will know to view the request through an ADA filter. If, on the other hand, the employee makes plain that he or she wants leave and the request otherwise qualifies, it may be best to stop further inquiries and begin FMLA procedures. Keep in mind that you cannot dilly-dally in deciphering the employee’s communication -- generally, an employer must get the FMLA paperwork to an employee making an FMLA request within one to two days.
In the context of this article, all that can be said is this: the development and implementation of appropriate forms and procedures, coupled with “real world” training, is your best defense against making mistakes in this very troublesome area.14. How do I know if the employee’s condition, or a relative’s condition, amounts to a “serious health condition” under the FMLA? Is it the same as a “disability” under the ADA?
The FMLA defines a "serious health condition" as an illness, injury, impairment, or physical or mental condition that involves any of the following:
- any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
- a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
- any period of incapacity due to pregnancy, or for prenatal care; or
- any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
- a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or,
- any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).
Most courts take these definitions literally. For instance, in a recent case, a federal court dealt with a parent who sought FMLA leave to care for a child with ADD and ADHD. The child was certified as “educable mentally impaired,” and took medication for impulse control. The court, however, ruled that these conditions were not serious enough to merit FMLA leave. The court noted that the child could still attend school, and could still do what children do – bike, swim, play games, and so on. As such, the child required no more supervision than a younger child with no disabilities.
Note that a “serious health condition" is not necessarily the same as an ADA "disability." An ADA "disability" is generally an impairment that substantially limits one or more major life activities. Some "serious health conditions" under the FMLA may also be ADA disabilities, but others may not be – for instance, a routine broken leg may well be a “serious health condition” but will most likely not qualify as an ADA “disability,” since it does not impair a major life activity as the courts which have interpreted the ADA usually define that standard.15. Do I have to grant leave on an intermittent basis if an employee requests it? Suppose the employee requests leave in the form of an ongoing reduced work schedule?
Employees are entitled to such leave – i.e., one day a week, or 4 hours a day -- but only in certain circumstances.
Intermittent/reduced schedule leave may be taken when medically necessary to care for a seriously ill family member, or because of the employee's serious health condition. In addition, intermittent/reduced schedule leave may be taken to care for a newborn or newly placed adopted or foster care child, but only with the employer's approval.
Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer's operations, subject to the approval of the employee's health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee's regular job.
Caution: Under the ADA, a qualified individual with a disability may work part-time in his/her current position, or occasionally take time off, as a reasonable accommodation if it would not impose an undue hardship on the employer. If (or when) reduced hours create an undue hardship in the current position, the employer must see if there is a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship while working a reduced schedule. An ADA accommodation of this nature is not restricted to 12 work weeks, and there is no statutorily guaranteed right of reinstatement, as exists under the FMLA. This is a complex area of statutory interaction. Consult competent counsel.16. Do employees have to provide any advance notice of their need for FMLA leave? Can they just spring it on me at the last minute?
The FMLA provides that employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable; notice "as soon as practicable" when the need to take FMLA leave is not foreseeable ("as soon as practicable" generally means at least verbal notice to the employer within one or two business days of learning of the need to take FMLA leave); and, where the employer was not made aware that an employee was absent for FMLA reasons and the employee wants the leave counted as FMLA leave, timely notice (generally within two business days of returning to work) that leave was taken for an FMLA-qualifying reason.17. Am I required to tell employees about their right to take FMLA leave?
Covered employers must take a variety of steps to provide information to employees about their FMLA rights. A full explanation is beyond the scope of this article, but it encompasses posting certain notices, including information in handbooks or, if none exist, in other written materials, providing notices designating leave as FMLA leave, providing certain notices if the employer seeks medical certification from the employee, providing notice of the employee’s right or obligation to use accrued paid leave in lieu of FMLA leave, notice of co-pay responsibilities on group health insurance… and more. Make certain your procedures are up to speed.18. What kind of files should employers keep, separate from the usual personnel files, for medical documentation received pursuant to the FMLA?
To maintain an employee’s privacy, an employer would be well advised to keep a single confidential medical file, separate from the usual personnel file, containing both FMLA and ADA medical information. Employers must understand the confidentiality requirements, under the ADA and FMLA regulations as well as other bodies of law, that apply to this information. For example, employers may not give supervisors and managers unlimited access to an employee’s medical files, although employers may give supervisors and managers information concerning necessary work restrictions and accommodations.19. Under the FMLA, can I require an employee who seeks leave to accept some other form of accommodation, like a reduced work schedule, the right to work at home, and so on?
No. This is another, crucial distinction between the ADA and the FMLA. Under the ADA, an employer has the right (in fact, the obligation) to engage the employee in a dialogue respecting a reasonable accommodation, and in that context the employer may offer the employee alternatives to leave from work. However, under the FMLA, if the individual is "eligible" for leave, he or she has the right to take a leave of absence of up to 12 work weeks in 12 months, even if he or she could continue working with an effective reasonable accommodation. While the FMLA does not prevent an employee from accepting an alternative to unpaid leave, the acceptance must be voluntary and uncoerced – be careful about the way in which you discuss these alternatives.20. What happens if I mess up and violate the FMLA?
In the event of a violation, the FMLA authorizes an award of damages – not only against the employer, but also against responsible individuals. The damages can include lost wages and employment benefits (for instance, if an employee is fired for taking leave he or she had a right to take under the FMLA and is out of work for an extended period). In addition, the employee will be entitled to attorneys fees, and may be able to recover certain “liquidated damages” that can, in essence, double the employee’s recovery. The employee can also seek reinstatement and promotion.
But while the FMLA does not itself provide “bonanza” damages for emotional distress and punitive damages, a failure to comply with the FMLA can still lead to a multi-million dollar verdict. This is because employees who suffer an FMLA violation will join other, related claims in the FMLA lawsuit, all of which will be predicated on the FMLA violation. For example, a hospital employee in Illinois claimed that his employer improperly terminated him for taking FMLA leave. The employee coupled his FMLA claim with a state law claim for intentional infliction of emotional distress, based on the FMLA issue. The result: a federal court jury in Chicago awarded $11.65 million in damages, $10 million of which was punitive damages. In addition, two of the plaintiff’s supervisors were found to be individually liable for $200,000 in compensatory damages, and $250,000 in punitive damages.
Be careful. And let us know if we can help.
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