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Family and Medical Leave Act Basics

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Family and Medical Leave Act Basics

In this course, we will cover the basics of the Family and Medical Leave Act (FMLA). Attendees will gain a working knowledge of the FMLA and important terminology used in that statute. We will also review the process for notification, certification, and designation under the FMLA.

Transcript

- Hello, my name is Diane Seltzer. And I'm an employment lawyer practicing in the Washington, D.C., Metropolitan area. My focus is entirely on employment law and the issues that arise in the workplace. I handle every kind of workplace issue imaginable. But one of my favorite topics is the Family and Medical Leave Act. This law was enacted almost 30 years ago. And yet, there are still misunderstandings and misconceptions about to whom it applies and what benefits it provides. So in this course, we're going to have an overview of the Family and Medical Leave Act so that we have a working knowledge, or hopefully better than a working knowledge, of when something should go off in our minds, that spots the applicability of the law and lets us understand what we need to do in order to comply with it. So let's get started. What is the Family and Medical Leave Act? The FMLA, as it's commonly referred to, is a law that provides unpaid job protected leave, leave that is either continuous or intermittent. It requires the maintenance of health insurance during FMLA leave. And it requires that the employee be restored to the same or substantially similar job after the Family and Medical Leave Act leave is exhausted. So there are pretty important and significant benefits that this law provides. And we are going to talk about soon to whom this law applies. But understand that every covered employer must provide a general notice to their employees regarding the Family and Medical Leave Act. This can be done by displaying a poster or distributing it electronically, which certainly can be important in a remote workforce setting. And it can also be accomplished by providing a written general notice to employees, such as in an employee handbook or in other written materials provided when the employee is hired. There's a poster that the Department of Labor puts out that covers what an employee's rights are under the Family and Medical Leave Act. And this provides a really helpful summary for those of you who want to have everything in one place as important government authenticated overview of the law. So what are the eligibility requirements from the perspective of an employer and the perspective of an employee? Because not every employer is covered by the FMLA and not every employee is automatically eligible for the benefits of that law. Covered employers. To be covered by the Family and Medical Leave Act, a private employer must employ at least 50 employees in 20 or more work weeks in the current or previous calendar year, within 75 miles of the work site. The work weeks do not need to be consecutive. And the employee is considered employed for that week if they worked any part of that week. All federal, state, and local government agencies, and all elementary and secondary schools, are covered by the FMLA regardless of the number of employees they have. What about employee eligibility? There's a misconception that every employee is covered by this law, and they're not. So to be eligible for FMLA benefits and coverage, an employer has to, at the outset, work for an FMLA-covered employer. And that employee has to have worked for the employer for at least 12 months, which need not be consecutive. But generally speaking, if the employee has a break in service that lasted more than seven years, the employee cannot count the period of employment prior to the seven-year break. The employee has to have worked at least 1,250 hours during the 12-month period immediately proceeding the commencement of leave. And the employee has to have worked at a location where at least 50 employees are employed by the employer within 75 miles of that site. Now, be aware that there are many state versions of the federal Family Medical Leave Act, and their requirements may differ and may be more generous towards employees than the federal law. So you've really gotta make sure, in your state, you have to see if there is a comparable state version of this law that may have different coverage and eligibility requirements, and may also give different benefits. So what are the FMLA leave benefits that we're speaking about? FMLA eligible employees are entitled to up to 12 work weeks of job protected, unpaid leave, or earned or accrued paid leave in a 12-month period, or up to 26 work weeks in a single 12-month period to care for a covered service member with a serious injury or illness. The maximum leave is a combined total of 26 work weeks of leave during the single 12-month period. So what are the bases for requesting FMLA? You have to have a legal basis that is covered by this law in order to even request such leave. So what are the circumstances that provide leave rights? One is the birth of a child and to bond with the newborn within one year of birth. Another circumstance is when the employee adopts a child or accepts placement of a foster child, and to bond with the newly placed child within one year of birth or placement. For the employee's own serious health condition that makes the employee unable to perform one or more functions of their job. Another circumstance is to care for a child, spouse, or parent of the employee who has a serious health condition. And we'll get into the definition of that term shortly. Another circumstance is for qualifying exigencies related to certain military deployments. And another circumstance is to care for a covered service member who has a serious injury or illness. So what is a serious health condition that triggers the ability for an employee to have leave under this law? It's relatively self-evident what the birth of a child is, or what the placement of a child in foster care or the adoption of a child means. But serious health condition is a term of art. And it has a definition. It is an illness, injury, or impairment, or a physical or mental condition that involves either inpatient care in a medical facility or continuing treatment by a healthcare provider. That's going to lead us to more definitions. So what is inpatient care? And luckily, we don't have to make these definitions up. They are set forth in the statute. And it's accompanying regulations. So a serious health condition involving inpatient care includes an overnight stay in a hospital, hospice, or residential care facility, or any period of incapacity or any subsequent treatment in connection with the overnight stay. What's the definition of continuing treatment? Well, a serious health condition involving continuing treatment by a healthcare provider includes any one of the following. A period of incapacity plus treatment, any period of incapacity due to pregnancy or for prenatal care, any period of incapacity due to the treatment for a chronic serious health condition, a period of incapacity which is permanent or long term due to a condition, or a condition requiring multiple treatments. So we have a number of definitions for the term continuing treatment. Now, continuing treatment, incapacity and treatment, it's further defined. That means it's a period of incapacity of more than three consecutive full calendar days, and any subsequent treatment or incapacity related to the same condition that involves either two or more in-person visits to a healthcare provider for treatment for the illness within 30 days of the first day of incapacity, or at least one in-person visit to a healthcare provider resulting in a regimen of continuing treatment under the healthcare provider supervision. And in order to be considered to have received treatment by a healthcare provider, the employee has to make an in-person visit to a healthcare provider within seven days of the first day of incapacity. So yes, these are very nuanced and detailed definitions, but it's supposed to remove any question about what is continuing treatment, what is incapacity, and similarly, as you'll see, other definitions have detailed sub-definitions as well. And it's so that we have clarity and everyone who has something that might be minor or that's easily treated, or that only needs treatment one time, and it's relatively minor treatment, does not get to avail themselves of the use and protections of this law. Remember, it's supposed to be for addressing serious health conditions, not any health condition. So what's continuing treatment for pregnancy or prenatal care? Well, eligible employees are entitled to FMLA leave for any period of incapacity due to pregnancy or for prenatal care, even if medical treatment is not required during the absence, and even if the absence does not last more than three consecutive calendar days. So the spouse of a pregnant woman is entitled to FMLA leave if needed to care for the pregnant spouse who's incapacitated, or if they're needed to care for her during her prenatal care or following the birth of a child. Both parents are entitled to FMLA leave if needed to care for a child with a serious health condition. So that is a more expansive and generous approach to continuing treatment. So continuing treatment for chronic conditions, what does that mean? Well, a serious health condition involving continuing treatment by a healthcare provider includes any period of incapacity due to a chronic serious health condition. And that is defined as a condition which requires periodic visits at least twice a year for treatment by a healthcare provider, or that continues or recurs over an extended period of time, including recurring episodes of a single underlying condition. And that may cause episodic rather than a continuing period of incapacity. So think of diseases and illnesses like asthma, or diabetes, or epilepsy. So such an employee qualifies, even if medical treatment is not required, and even if the absence doesn't last more than three consecutive calendar days. Continuing treatment of long-term conditions. Well, here, the benefit is provided if there is a period of incapacity, which is permanent or long term, due to a condition for which treatment may not be effective. Think of Alzheimer's. Think of severe stroke. Think of the terminal stages of a disease. But that requires the continuing supervision of a healthcare provider. And to qualify here, the employee or the family member must be under continuing supervision of, but need not be receiving active treatment by a healthcare provider. Continuing treatment, multiple treatments. What does that mean? Well, it means any period of absence to receive multiple treatments for restorative surgery after an accident or other injury, or a condition that would likely result in a period of incapacity of more than three consecutive full calendar days, if treatment wasn't received. So think of cancer treatment, like chemotherapy and radiation. Think of treatment for severe arthritis, like physical therapy. Or think of kidney disease. For example, dialysis. So what about voluntary procedures? Are those considered serious health conditions? And the law is pretty clear. Voluntary or cosmetic treatments will be considered serious health conditions when inpatient hospital care is required or if complications develop. Serious health conditions, substance abuse. Is substance abuse going to be considered a serious health condition? And as with so many things in the law, the answer is, it depends. It can be a serious health condition, but leave can only be taken for the treatment of the abuse by, or on referral by a healthcare provider, not because of the effects of the employee's use of the substance. So that can get into some gray areas that would require further analysis. For example, if someone is a drug addict, and they develop a disease as a result. If they abuse alcohol, they develop cirrhosis of the liver, and now they need to take time off for the cirrhosis of the liver, the argument would certainly make sense that it is covered by the FMLA. But if someone simply has a hangover the next day from drinking too much the day before, arguably that would not be covered. And that would not be a serious health condition under the FMLA. So what does this mean if the employee is able to perform their job or the functions of their position? What it means is they're unable to provide the functions of their position if a healthcare provider finds that they are unable to work at all, or they're unable to perform any one of the essential functions of the position. And an employee who must be absent from work to receive medical treatment for a serious health condition is in fact considered to be unable to perform the essential functions of the position during the absence for treatment. So remember, a lot of times treatment is going to be covered not only the illness itself. Next slide. We've talked a little bit about the military family aspect of this. So military family leave, which is also something that doesn't always come to mind, and it was part of amendments to this law, but the amendments are not new. And we need to be familiar with them, whether they're new or old. Military family leave is available for qualifying exigencies arising out of the employee's spouse, son, daughter, or parent being a military member on covered active duty, or being notified of an impending call or order to covered active duty status. It's also available to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of this covered service member. And we'll talk a bit more about those definitions later on in this program. So what's the process for getting this underway? There's gotta be some kind of notice, procedure, on both parties' parts. And in fact, there is. So, the notice of eligibility, what are the employee's rights and requirements in order to get the ball rolling so that they can, in fact, get FMLA leave? Well, the employees got to give notice. Whether FMLA leave is going to be continuous, intermittent, or taken on a reduced schedule basis, notice of the need for leave only needs to be given one time. But the employee must advise the employer as soon as practicable, if dates of scheduled leave change or are extended, or were initially unknown. So the employee doesn't have to use the term FMLA. They just have to provide enough information for the employer to understand that the leave may be for an FMLA-qualifying reason. And that's why we take this course so that we can identify and read between the lines when an employee is talking about something that may trigger our requirements as an employer under the FMLA. So notice can be oral or written. And when notice must be given depends on whether the need for leave is foreseeable. Think about it. Someone might have a car accident. The need for leave is not foreseeable. Or someone may have a planned surgery and the need is foreseeable. So what does as soon as practicable mean in terms of giving notice? It means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. So when an employee becomes aware of a need for FMLA less than 30 days in advance, then it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day after the employee became aware of the need for leave. What about for the birth, or adoption, or foster care of a child? What are those notice obligations? Well, where the employee takes leave for the birth or adoption of a child, or because of the placement of a child with the employee for foster care, they must give at least 30 days notice before the date of leave is expected to begin. And if the birth replacement requires leave to begin in less than 30 days, then the employee should provide notice as soon as it's practical. And of course, we can't always tell when a baby will be born. They often have minds of their own. Same, of course, with being able to accept a child who is up for adoption or who is in the foster care system. So there's gotta be a fair amount of flexibility in this regard. So further clarifying these notice obligations, when an employee has a serious health condition, for leave required in connection with planned medical treatment, an employee should consult with his or her employer to schedule the leave in order to minimize the disruption to the business. The employee, excuse me, should also provide the employer with at least 30 days notice before the leave is to begin. If the day of treatment requires leave to begin in less than 30 days, then the employee should provide notice as soon as it's practicable. What about when there's a qualifying exigency with respect to the military leave? Well, when the leave arises out of a qualifying exigency related to the active military duty of a spouse, child, or parent of an employee, the employee should provide notice to the employer as soon as is reasonable and practicable. Notice of eligibility. What are the employer's responsibilities after receiving notice of the need for leave? Well, a lot of this is covered by forms that the Department of Labor has already published. So we don't have to invent these from scratch. When an employee requests FMLA leave, or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, then the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances. Now, again, it doesn't mean that they're approving the leave at this point. They're just saying you are eligible potentially under the law, okay? And then the decision will be made later. But they have to at least say you're eligible to apply for it. And there are forms, as I will get to. This one is form WH-381. It's in your materials. So the employee eligibility is determined, and notice has to be provided, at the commencement of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period. So if you look at form WH-381, Eligibility and Rights and Responsibilities Notice, that has all the information that the employee will need to provide at least at this initial stage. And that's how the employer satisfies its notice requirement in terms of what it has to provide to the employee. So the eligibility notice has to state whether the employee is eligible for FMLA leave. And if the employee is not eligible for FMLA leave, the notice has to state at least one reason why the employee is not eligible. For example, maybe the employee has only been working there for a month. They would not be eligible for leave. Notification of eligibility may be oral, or it may be in writing. The Rights and Responsibilities Notice with respect to what the employer has to do, the employer shall provide written notice detailing the specific expectations and obligations of the employee, and explaining any consequences of a failure to meet these obligations. Requesting certification. So the next step is to obtain certification regarding the need for this leave. And there are four separate FMLA certifications. There is one that covers the employee's serious health condition, one that covers the serious health condition of a family member, one that covers a qualifying exigency, and that, again, deals with military related leave. And the last type involves military caregiver leave. So the certifications and the employer notice are voluntary, but our strong recommendation is that the employer does request this certification. They don't have to give the leave if the certification is not appropriate. And it certainly will help stem other claims because of an employee who says, "I had to give certification and someone else didn't. That's discriminatory. That's unfair." So if it's required across the board, that's certainly a best practice. And it certainly will ensure, from that perspective, that all employees are being treated equally in terms of what they have to submit to show that they are eligible. So the employers should request that an employee provides certification within five business days of the time the employee gives notice of the need for leave or within five business days after leave commences in the case of unforeseen leave. Again, remember medical emergencies, car accidents, some kind of traumatic injury, that kind of thing. Now, if the employee fails to provide the employer with a complete and sufficient certification, despite the opportunity to cure the certification, or if the employee fails to provide any certification, the employer may deny the taking of the FMLA leave. Certification forms are available. And the employee has to provide the requested certification to the employer within 15 calendar days of the employer's request. So the employer can satisfy this requirement by providing the employee with forms WH-380-E for the employee, WH-380-F for a family member, WH-384, WH-385, or WH-385-V. And I've put links to each of these forms in the materials, and you should have hard copies as well. These forms are periodically updated. So if you are going to use them and you notice that it is beyond the expiration date printed on the form, you should see if the form was extended, or you could go to the Department of Labor's website and see if a new form has been issued. The Department of Labor has been pretty on top of this. And while there's nothing automatically wrong with using a form that has expired, it's certainly a best practice to use one with an expiration date that is in the future, not in the past. What about follow-up inquiries? So if the employer has questions about a medical certification regarding a medical condition, a healthcare provider representing the employer may contact the employee's healthcare provider with the employee's permission for the purpose of clarifying or authenticating the certification. So, for example, if they can't read handwriting or they don't understand the meaning of a response, that kind of contact is okay. Also, if it's something that is unsigned, or it is from a hospital or a medical practice that does not seem to exist, or there are questions about its legitimacy. There's no website. There's no phone number. There's no email. Then, that is a case where follow-up inquiry is fine. Also, the employer can make follow-up inquiries regarding qualifying exigencies. So if the qualifying exigency, and, again, this is with respect to military-related leave. If it involves meeting with a third party, the employer may contact that individual or that entity with whom the employee is meeting for purposes of verifying a meeting or an appointment schedule, and for purposes of verifying the nature of the meeting between the employee and the specified individual or entity. Another word about follow-up inquiries. An employer that has reason to doubt the validity of a medical certification may require the employee to obtain a second medical certification at the employer's expense. So the employer is permitted to designate the healthcare provider who's going to furnish the second opinion, but the provider may not be someone who's employed on a regular basis by the employer. And that is because we wanna eliminate the possibility of bias. If the second certification differs with the conclusions of the first certification, then the employer can require a third certification by a jointly selected provider, again, at the employer's expense. And that certification is final. So it's not best of three. It is that third one who decides. So let's talk a bit about granting or denying FMLA leave. What are the steps? How do we make these decisions? There's a designation notice. Again, the Department of Labor has issued a form that can be used. And the designation must be in writing. And again, this will eliminate any kind of confusion or different versions of whether something was designated as FMLA leave or not. It's in writing. There's no wiggle room. So the employer has to notify the employee of the amount of leave counted against the employee's FMLA leave entitlement. And failure to follow the notice requirement may constitute an interference with restraint or denial of the exercise of an employee's FMLA rights. And that could expose the employer to liability. And if the employee can't get clarity on whether they are, in fact, entitled to take the leave, and whether the leave has been designated as such, that will create big problems for the employer later on. In the designation notice, if the employer determines that the leave will not be designated as FMLA-qualifying, that is because the leave is not for a reason covered by the FMLA, or the FMLA leave bank has been exhausted, the employer must notify the employee of that determination. And any change to the designation notice has to be provided to the employer within five business days. Now, what if leave is granted? Let's go to the next slide and find out what happens then. These are the employer responsibilities if they're going to designate leave as FMLA leave, okay? So what are the employer's responsibilities with respect to designating leave as FMLA leave? Well, the employer is responsible in all circumstances for designating leave as FMLA-qualifying and for giving notice of the designation to the employee. When the employer has enough information to determine whether the leave is being taken for FMLA-qualifying reasons, or an FMLA-qualifying reason, the employer must notify the employee whether the leave will be designated to be counted as FMLA leave within five business days. And in any circumstance where the employer does not have sufficient information about the employee's reason for leave, the employer should inquire further of the employee to determine whether leave is potentially FMLA-qualifying. This is not necessarily a one-and-done situation. There are times when information isn't adequate. They need to clarify certain information. And there could be some back and forth. But once the employer has the information it's going to receive, they can't wait and sit around and not decide quickly as to whether this will be FMLA-qualifying. Obviously, if it's not qualifying, the employee has some decisions to make about how they're going to handle their absence, whether they want to take the absence, and how long they need to be absent for. The designation notice. With respect to that, it has to be based only on information received from the employee or the employee's spokesperson. So the employer can't decide to designate something as FMLA leave for something that I will call outside the evidentiary record. They can't look on Facebook. They can't call other people. They can't ask other questions of coworkers or family members, that kind of thing. It really has to be just based on what they receive from the employee or someone who's authorized to speak on their behalf. Now, sometimes an employer will require that the employee use paid leave instead of the unpaid FMLA leave. And if they're going to require that, the employer must inform the employee of this designation at the time of designating the FMLA leave. And many people would wonder, well, why wouldn't the employee take paid leave? And not everyone wants to use their paid leave for an FMLA-qualifying reason. They may wanna take it for a vacation later on. And that's a legitimate thing to want. But the employer may have a policy saying if you have paid leave available and you're on FMLA leave, you have to use your paid leave. And again, these kinds of policies or requirements may make an employee reconsider what they wanna do about taking FMLA leave. But that's where it would typically come up if someone is hoping that they want to use their paid time off later on for something fun and they're willing to take unpaid time off right now. So be aware if you are representing employers, or if you are an employer, that this is something that has consequences for the employee down the road when they want additional or different time off for something not FMLA-related. They may not take kindly to the requirement that they use their paid leave in this circumstance. So with respect to substituting paid leave, an employer can require the employee to substitute accrued paid leave under their plans, again, paid leave, paid vacation leave, personal leave, that kind of thing, for FMLA leave. Paid leave provided by the employer, and accrued person went to establish policies of the employer would run concurrently with the unpaid FMLA leave. So the employee would get their pay pursue into whatever the applicable paid leave policy is. And if an employee uses paid leave under circumstances that don't qualify as FMLA leave, then the leave will not count against the employee's FMLA leave entitlement. What about retroactive leave designation? This is an interesting one, because sometimes an employer will realize that it has not designated something as FMLA leave, and it should have. Some employers have an interest in making sure that an employee uses FMLA leave if that's an FMLA-qualifying reason, reason being employers don't wanna give employees more time off than they have to. And they don't wanna protect an employee's job for longer than they have to. So if an employee takes off time, it's not designated as FMLA time. And then they have another need for leave in the future, that 12-week bank remains untouched and available. And they had no consequences ostensibly for taking the previous time off. So employers may decide, well, or may ask, can we designate the old time that was not FMLA-protected or designated? Can we designate that retroactively as FMLA leave? And the answer is, like we've said before, maybe. So if an employer doesn't designate the leave as FMLA leave, they can retroactively designate leave as FMLA leave with appropriate notice to the employee, provided that their failure to timely designate the leave does not cause harm or injury to the employee. Now, we can imagine the situation where an employee has taken off four weeks for a serious health condition, but it was never considered FMLA. Didn't get the protections. Didn't get the rights and responsibilities for either party under the FMLA. And now that same employee wants to take off 12 weeks for maternity leave. But the employer says, "Mm-hmm. We're gonna call your last four week tranche of leave FMLA-designated. And now you only have eight weeks of maternity leave." So that's the perfect example of where a retroactive designation would cause harm or injury to the employee. And that is not advisable. That is not a good path to go down, because the employee, ostensibly, and I think predictably, if they have good counsel, will say, "This is harming me. This is injuring me. I didn't think of the old leave as FMLA leave. And I had saved all 12 weeks so I could take time off when my child was born or placed with me, or when I adopted or fostered a child." So now this is prejudicial. And liability can arise if that their failure to designate leave in a timely manner causes the employee to suffer harm. So you can imagine this coming up, for example, if the employee submitted the papers and just never got a response until much later, or if the employee's leave in the past may have been possibly FMLA-qualifying but the employer never told them about their rights. So there are a number of reasons why leave may not be designated as FMLA-qualifying, even though it is FMLA-qualifying. Either the employee didn't say enough, or the employer didn't designate it timely or at all. And now the issue becomes, well, what happens now when the employee needs or wants requests more FMLA leave and the old time off is being retroactively counted as FMLA leave and held against them. Not only is it not a best practice. It's a terrible practice to retroactively designate leave as FMLA leave if there is any possibility that it could cause harm or prejudice to the employee. The only time that it typically, or an example of when it wouldn't cause that prejudice, perhaps is if the employee needs eight weeks off and it's the last eight weeks of the 12-month period. And so the fact that something in the past is now being designated as four weeks of FMLA. It doesn't matter because it was 12 weeks within a 12-month period. And the 12-month period is about to end. And a new 12 month calendar begins. But again, it's very fact specific. And it's something to look at very closely to make sure that there won't be a problem with this retroactive designation causing prejudice to the employee. A question that comes up often is, what happens to employee benefits while the employee is on FMLA leave? Employees worry about this. They don't wanna lose their coverage under an employer's, for example, health insurance plan. They don't know what the cost could be. They don't know if they'll continue to accrue leave. So there are, you know, leave while on leave. There are certainly questions. Will they get their bonuses? There's a lot that are beyond the scope of this program, because we're talking about what the law provides and requires, that doesn't mean that an employer can't be more generous. This is a floor, not a ceiling. So there are certain policies where an employer could certainly say, even if you're on FMLA leave, these things will still in order to your benefit. But what the law addresses are the things that must still in order to the employee's benefit. So what kind of benefits must still be maintained while the employee's on FMLA leave? Well, the employer is required to maintain coverage of an employee on FMLA leave under any group health plan, including medical and dental coverage. And it has to provide the same level of health benefits as if the employee had not taken leave. And the taking of FMLA leave cannot result in the loss of any employment benefit accrued prior to the commencement of the leave. Also an employee's entitlement to benefits other than group health benefits during a period of FMLA leave, for example, holiday pay, is to be determined by the employer's established policy for providing such benefits when the employee is on other forms of leave, such as paid or unpaid leave as appropriate. So it's really important that we have policies that address these situations, where the law does not dictate what must happen. And having a good handbook that addresses this is absolutely the best way to address it before the situation arises. So continuing with benefits while on leave. Any share of group health plan premiums which had been paid by the employee prior to FMLA leave must continue to be paid by the employee during the FMLA leave period. If the employee's premiums are raised or lowered, then the employee would be required to pay the new premium rates. They'd have to be treated just like all the other employees. They don't get the benefit of a lower rate. And they're not gonna be punished by a higher rate unless everyone else is treated the same way. And then it's not punishment. It's being treated fairly. So in the absence of an established employer policy, providing a longer grace period, again, this law provides a floor, not a ceiling, the employer's obligations to maintain health insurance coverage cease if an employee's premium payment is more than 30 days late. And the important thing here is make sure the employee knows what the expectations are. And then you can go forward with enforcing them without having to worry. Now, what about the recovery of benefits costs? Because if this employee does not come back for certain reasons, well, then the employer may be able to recover monies that they paid. So if the employee doesn't return after FMLA leave, the employer generally can require the employee to pay back the amount that the employer spent on premium payments during the leave. So whatever the employer's portion was would be recoverable. But there's a big caveat here. If the employee doesn't return to work due to the continuation, recurrence, or onset of a serious health condition of the employee or the employee's family member, or due to the serious injury or illness of a covered service member that would entitle the employee to FMLA leave, or due to other circumstances beyond the employee's control, and there's a big kitchen sink factor there, then the employer may not recover the employer's share of health plan premiums. So if the reason the employee went out in the first place is the reason the employee can't come back, for a serious health condition purposes, then the employer can't recover those premiums. And again, if it has to do with something that would entitle someone to leave because of these military-related reasons, again, then the premiums can't be recovered. And as a practical matter, the employer has to weigh the risk of trying to recover the premium with the risk, or the benefit I should say, of trying to recover the premium with the risk of running a foul of the FMLA. So if the goal is to recover that premium, I would suggest that the employer be very clear as to understand why the employee is not returning to work. Now, if the employee just says, "I quit," the employer doesn't know why. And maybe the employer doesn't need to know why. But if the employer does have in mind, "Well, you're not coming back. We just paid 12 weeks' worth of health insurance premiums for you. We wanna get that money back," then they should at least make the inquiry as to why the employee is not returning to work. And the employer must keep in mind that due to other circumstances beyond the employee's control, is something they'll probably want to evaluate and see. And they may even wanna have some legal research done as to, what are those circumstances? What would qualify as something beyond the employee's control, preventing them from returning to work? And would it be enough to justify trying to recover the premiums or not? So that's gonna be fact intensive. Again, beyond the scope of this program, but the employer will have to do that cost benefit analysis. And including, of course, the cost of paying the lawyer to research whether the other circumstances satisfies the employee's requirement for not having to pay back those premiums. But those are the times and the conditions under which the employer can recover those costs. Now understand the employee's deemed to have returned to work where they return to work for at least 30 calendar days, where they transfer directly from taking FMLA leave to retirement, or where they retire during the first 30 days after they return to work. So what are the employee rights upon their return to work? Next slide. Because this slide does give the employee certain rights when they come back to work. It's not only the protected leave, but there are protections that then cover them once they're back. So the FMLA leave period cannot be counted against the employee under an attendance policy that disciplines employees for their absences, okay? So you can't say, "Well, you were on FMLA leave. So now you're not getting this benefit. We are holding that leave against you." That is a no-go, a non-starter. The employee must be returned to the same position or to an equivalent position with equivalent benefits pay and other terms and conditions of employment. But an employee has no greater right to reinstatement or to other benefits and conditions of employment than if he had been continuously, or if she or they had been continuously employed during the leave period. So this is not that you get special benefits. But you get the same as though you hadn't left. We'll talk about retaliation in a moment. But try to understand, taking FMLA leave does not immunize you or the employee. So if the employee was already on a performance improvement plan, that is not going to be undone simply because the employee took FMLA leave. If the employee was scheduled to have their job eliminated before the FMLA leave took place, well, that doesn't protect them either. When they return, the fact that they took the leave, their job will still be eliminated unless there's been some other business reason why it won't be. And of course, what comes up often is that while someone is on FMLA leave, an employer may realize the performance issues or things that weren't being done, or other performance or conduct-related matters that may not have come to light until someone else had to step up and do the employee on FMLA leaves job. And that's when a lot of performance problems are discovered. So if something is discovered while the person's on leave, that can certainly be used as the basis for an employment action against that employee. I have certainly had clients where an employee goes on FMLA leave, and the person covering for them finds things that were hidden, things that weren't done, piles of unopened mail in drawers, emails that were ignored or not responded to while the employee was actively employed, and those kinds of things would be the subject for disciplinary action or termination. And that doesn't change simply because the person took the FMLA leave. So what about coming back to the same position, and transferring someone to an alternate position? Well, if the employee needs intermittent leave that's foreseeable, the employer may require that the employee transfer temporarily to an alternative position for which the employee is qualified and that better accommodates recurring periods of leave. But the employer has to provide equivalent pay and benefits in the alternative position. But the position doesn't have to have equivalent duties. And when the employee no longer needs to continue on intermittent or reduce schedule leave, and is able to return to full-time work, the employer must place the employee in the same or equivalent job as the job the employee left when the leave commenced. So, again, be mindful about the fact that you can put someone in an alternate position if they're on intermittent leave. But otherwise, they pretty much have to be returned to the same job when they're done with their full continuous leave. Now, if that job, again, was slated to be changed or eliminated, and that's not something related to the FMLA leave, that's certainly fine. On the other hand, there will certainly be times when an employer realizes an employee is out on FMLA leave, and the job does need to be restructured, or perhaps even eliminated, because it's not that necessary, or it's not a useful position anymore, or there's a better way. So that's something where we have to remember, we don't want it to look like retaliation, that the employee doesn't have a job to return to. We wanna make sure that the business case for eliminating or changing the job is very strong and has nothing to do with the fact of taking the leave. Again, it may have something to do with what was discovered while the person was on leave, that this job is really outdated, that the description isn't accurate, whatever, but we wanna make sure there's good justification. So coming back to the job, sometimes there can be a requirement of a fitness for duty examination. And as a condition of restoring an employee whose FMLA leave was the result of their own serious health condition, an employer may have a uniformly applied policy or practice that requires all similarly-situated employees who take leave for such conditions to obtain certification from the employee's healthcare provider that the employee is able to resume work. An employer may delay restoration of employment until the employee submits a fitness for duty certification. And in order to institute this policy, the employer must notify the employee that such a certification will be required. And that notification must appear on the designation notice. And that way, the employee understands what the expectation will be. Now, there are exceptions regarding the employee's rights upon return, or right to return, after FMLA leave. And these exceptions are limited. There's no right to return if you are a key employee, if your reinstatement would cause substantial and grievous economic injury to the operations of the employer. And there's no precise test for that. But a minor inconvenience does not satisfy this requirement. If the employee is unable to perform an essential function of the position because of the physical or mental condition, it may trigger obligations of the employer under the Americans with Disabilities Act and comparable state or local laws protecting people who have disabilities. So we have to look at, well, the leave period is over, but if the employee can come back to work with reasonable accommodation, we need to look at, what does that mean? What might that look like? Of course, if the job was eliminated, legitimately, as we've discussed, the employee has no rights upon return. And if the employee would've been terminated anyway, again, based on performance, based on conduct, based on other business needs, And, again, as long as these are documented, and hopefully there were discussions or documents, emails about this before the leave took place. But certainly if it's something that came to light while the employee was on leave, and the employee would've been terminated for that conduct that was discovered during FMLA, but that happened prior to the leave, then there's no right to return. So from a legal perspective, there are two types of claims: interference and retaliation claims. Retaliation claims, next slide, are based on an employee who exercises their FMLA rights and then has adverse action taken against them as a result. Interference claims, those are different than retaliation claims because retaliation claims require intent. You have to mean it, that I am going to get you because you took FMLA leave. Interference claims do not require intent. An interference claim is colorable when the employer interferes with restrains or denies the exercise of, or the attempt to exercise an individual's right to take FMLA leave. The intent is immaterial. If the employer does this, then it is liable. So that is really something to be mindful of that you don't have to mean it. I didn't mean to interfere with your rights to take FMLA leave. If you, as the employer, do that, then there is liability. Retaliation is intent based. So those are the types of claims that an employee can bring. So this has been our overview of the FMLA basics. Hopefully, now you will have a strong working knowledge and hopefully more of the terminology that goes with this law and the process for requesting leave, granting leave, and what are the rights and responsibilities of both parties during this process? I also urge you to look at, if applicable in your practice, the forms WH-384 and WH-385-V, which go into much more detail regarding the basis for military caregiver leave under this law and for qualifying exigency leave under this law. Although less common, they certainly do have a role in this law. And they are aspects that we do deal with as practitioners who do FMLA law, and as HR professionals who need to understand this law. I hope this has been a helpful presentation to you. And I wish you all the success with navigating the challenges of the Family Medical Leave Act.

Presenter(s)

Diane Seltzer
Principal
Seltzer Law Firm

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