How do you handle:
- learning that a serious illness is the underlying cause of your building maintenance person suddenly dropping tools and falling asleep?
- your finance manager’s 24-year-old married daughter, in the late stages of pregnancy, ordered on bed rest and requiring her mother’s assistance?
- requested time off by your male shift supervisor after the birth of his child?
- an employee requiring time off to attend an addiction recovery program?
- your receptionist unable to perform her work duties due to carpel tunnel syndrome?
Whenever an employee is absent, it places a burden on your operations as you are forced to cover their job functions with your remaining team members or, if possible, through the hiring of a temporary employee.
At a recent seminar our Agency sponsored, employment law attorney, Susan Fentin, Esq., enlightened how the handling of the above and other situations are often taken out of the hands of the employer and rather dictated by ADAAA and/ or FMLA regulations.
FMLA Serious Health Condition Defined
Illness, injury, impairment, or physical or mental condition that involves period of incapacity or treatment:
- connected with inpatient care in a hospital, hospice, or residential medical care facility
- 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
- due to pregnancy, or for prenatal care;
- due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.);
- permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.)
As well as 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.)
Is your business subject to FMLA?
You are required to comply with FMLA regulations if you are:
- a public agency;
- a state, local, or federal employer;
- a local education agency/school;
- or a private employer with 50 or more employees (full or part-time) each working day for at least 20 weeks (need not be consecutive) during either the current or preceding calendar year.
Compliance requires that you must publish your FMLA policy in your employee benefit handbook with required elements including specific designations of any policy option available under the regulations (i.e. 12-month period, consideration of paid leave as part of FMLA leave, provisions regarding use of vacation time during FMLA leave, etc.).
Employers not meeting the above qualifications may opt to create their own family leave policy.
Are all employees eligible under FMLA?
If your business is subject to FMLA, your employee must also qualify to seek FMLA benefits. The employee must have worked:
- for you for at least 12 months and
- for at least 1250 hours during the 12 months prior to seeking FMLA leave
- at a location where at least 50 employees are employed or within 75 miles of such location
What does FMLA entitle employees to?
If the required leave from work triggers FMLA, it provides your eligible employee with up to 12 work weeks of job-protected, unpaid leave during any 12 month period; maintenance of health benefits during leave; and job restoration after leave. Under certain conditions, the 12 weeks may be taken intermittently.
What leaves are covered by FMLA?
Specified family and medical reasons such as:
- Birth and care of his/her child within one year of birth
- Adoption or foster care of child within one year of the placement
- Care of an immediate family member – spouse, child, parent (not including grandparents or in-laws) – who has a serious health condition
- For his/her own serious health condition that makes him/her unable to perform the essential functions of his/her job
- Qualifying conditions arising out of his/her spouse, son, daughter, or parent on active duty in the U.S. Military or has been notified of an impending call or order to active duty in the U.S. National Guard or Reserves
Obligations when FMLA is triggered
Both the employee and the employer have requirements imposed upon them by the FMLA regulations:
The employee must provide the employer with:
- 30-day 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);
- sufficient information for the employer to understand that the employee needs leave for FMLA qualifying reasons (the employee does not need to mention FMLA when requesting leave to
- meet this requirement, but just explain why the leave is needed); and,
- timely notice (generally within two business days of returning to work) that leave was taken for an FMLA-qualifying reason if the employer was not made aware that an employee was absent for FMLA reasons and the employee wants the leave counted as FMLA leave.
The employer must then:
- make, keep, and preserve records pertaining to your obligations in accordance with both the record-keeping requirements section 11(c) of the Fair Labor Standard Act (FLSA) and FMLA regulations
- maintain group health insurance coverage, including family coverage, on the same terms as if the employee continued to work.
- in absence of handbooks, provide general written guidance about employee rights and obligations under FMLA whenever an employee requests leave
- provide a written letter to employee, within one or two business days after receiving the employee’s notice of need for leave, designating the leave as FMLA leave and detailing specific expectations and obligations of the employee as well as the following:
- any requirements for the employee to furnish medical certification and the consequences of failing to do so; make co-premium payments for maintaining group health insurance and arrangements for making such; present a fitness-for-duty certification before being restored to his/her job;
- the employee’s right to elect to use accrued paid leave for unpaid FMLA leave and whether the employer will require the use of paid leave, and the conditions related to using paid leave;
- rights to job restoration upon return from leave;
- employee’s potential liability for reimbursement of health insurance premiums paid by the employer during the leave if the employee fails to return to work after taking FMLA leave; and
- whether the employee qualifies as a “key” employee and the circumstances under which the employee may not be restored to his or her job following leave.
How does the FMLA impact other employee benefits?
Only health benefits need to be maintained for an employee during FMLA leave. Certain earned benefits (i.e. seniority or paid leave) do not need to continue to accrue as long as these benefits do not accrue for employees on other types of unpaid leave.
Realizing that employees are a valuable asset, an employer may make arrangements with an employee to continue certain benefits so there is no lapse nor jeopardy of the the employee not being able to be restored to the same benefits upon returning to work. If this is done, the employer can seek only reimbursement of the employee’s share of premiums paid to maintain these other benefits.
RE: Workers Compensation & Disability
FMLA leave does not impact the specific handling of workers’ compensation leave or a disability leave–however, they can run at the same time if the reason for the absence is a qualifying serious illness or injury and you have notified the employee in writing that the leave will be counted as FMLA leave.
RE: Vacation and Sick Leave
The law permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. If paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.
FMLA Common Mistakes
Employers are faced with significant challenges in effectively managing FMLA. Mismanagement can cost an employer hundreds of thousands of dollars in related costs. The most frequent FMLA violations are:
- Failure of the employer to notify the employee of his or her FMLA rights
- Failure to notify the employee that the leave counted toward the employee’s 12-week entitlement
- Taking disciplinary action against an employee for using FMLA
- Failure to grant leave to provide physical care or psychological comfort to a seriously ill parent or child
- Failure to reinstate employees to the same or equivalent position, including same shift
- Terminating an employee during or at the conclusion of FMLA leave
- Failure to grant FMLA leave because of misunderstanding of what qualifies as a serious health condition
- Failure to request medical certification in writing and not giving an employee at least 15 days to obtain it
Employees who successfully sued for wrongful termination based on FMLA absence received on average between $87,500 – $450,000 in damages (EEOC). In addition, the average cost to defend a FMLA lawsuit is $78,000, regardless of the outcome. (SHRM) What is your risk of violation?
Fines and Penalties for Failure to Comply
The Wage and Hour Division of the United States Department of Labor is responsible for enforcing the provisions of the FMLA. An employee who believes his or her FMLA rights have been violated may file a complaint with their local division office, and is also entitled to file a private lawsuit.
If an employer fails to reinstate an employee to the same job, or one that is equal in compensation, benefits, duties, skills and competencies, the employer may be ordered to reinstate the employee and compensate him or her for any resulting lost wages.
If an employer unlawfully cancels the employee’s group health benefits during FMLA leave, the employer must reinstate them, and may be liable for any damages associated with the unlawful lack of health coverage.
In cases where an eligible employee is denied FMLA leave itself, the employer may be required to pay a monetary award of up to 12 weeks of wages.
Courts can also consider awarding additional damages, including reasonable attorney and court fees, to an employee-particularly if they find willful intent to violate the FMLA on the part of the employee.
Finally, the Department of Labor can fine an employer $110 per violation for failure to place an FMLA poster in a location where it can be seen and read with ease by employees and pre-employment applicants.
Your business can elect to transfer your risk of some FMLA related claims to an insurance carrier by purchasing Employment Practice Liability coverage. This would protect your company if you are sued by an employee for mismanaging his/her FMLA leave.
Employee Benefits Liability coverage would protect your business if you fail to continue required benefits, such as group health insurance, during an employee’s FMLA leave.
How We Can Help…
Our agency can assist you in finding resources to answer FMLA questions or concerns that may arise. In addition we can review your insurance program to see if you have Employment Practices Liability and Employee Benefits coverage for protection of those insurable incidents. Please contact us today to review your exposures and potential risk transfer available. firstname.lastname@example.org