| I.
Overview of the Family and Medical Leave Act (FMLA)
The
federal Family and Medical Leave Act of 1993 (FMLA), 28 U.S.C. §
2601 et seq., applies to most employers with fifty
or more employees. The FMLA requires covered employers to grant
up to twelve weeks of family and medical leave each year to eligible
employees.
This
first section of these materials is a primer on the FMLA. Employers
will find here "the basics" -the who, what, where, when, and some
of the "why." The "how" -how to put together a policy and how to
administer your policy -may be found in Section V.
- Which
employers are covered by the FMLA?
A
"covered" employer is one that employs fifty (50) or more employees
each working day during each of twenty (20) or more calendar workweeks
in the current or preceding calendar year, including successor
employers, schools, and public agencies.
--"Employee"
includes: full time, part-time, hourly, salaried, exempt, and
non-exempt employees.
--If an employee's name appears on the payroll for a given week,
the employee is deemed to have been employed for that week.
Also, any employee on leave of any kind generally counts towards
the required total of fifty.
Sometimes,
an employer with fewer than fifty employees may be "covered" if
it meets the "integrated employer test" (two or more businesses
may constitute one employer if they have one or more of the following
characteristics: common management; interrelations between operations;
centralized control of labor relations; and a high degree of common
ownership or financial control) or the "joint employers"
test (a joint employment relationship may exist if two employers
have an arrangement to share an employee's services or if they
share control of the employee, whether directly or indirectly).
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- Which
employees are eligible to take FMLA leave?
In
general, an employee is eligible to take FMLA leave if he or she
has been employed by the employer for a minimum twelve (12) months
total (current and prior employment) and if he or she has worked
at least 1250 hours for the employer during the 12-month period
immediately preceding the commencement of the leave. Note that
the employee need not have worked for the employer for 12 consecutive
months, as long as the 1250-hour requirement is met.
For
employers with multiple sites, the employee must have worked on
a site at which fifty (50) or more employees work, unless the
total number of employees within seventy-five (75) miles of the
worksite is 50 or more.
Note
that in order to be eligible to take FMLA leave, an employee must
not have used up his or her 12-week allotment of leave during
the current "leave year" (see Section V.G).
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- What
are the legitimate reasons for taking FMLA leave?
An
eligible employee may take family and medical leave (up to twelve
weeks) only for one of the four following reasons:
--because
of the birth of a child and to care for the newborn child
--because of the placement of a child with the employee for
adoption or foster care;
--because the employee is needed to care for a family member
(son or daughter, spouse, or parent) with a serious health
condition; or
--because the employee's own serious health condition makes
the employee unable to perform the functions of his or her
job.
Leave
taken due to the birth, placement, or adoption of a child must
be taken within one year of the qualifying event.
In
the case of leave taken due to a placement or adoption, the
child must be under 18 years of age.
For
FMLA purposes,
--"Son
or daughter" means a biological, adopted, or foster child,
a step child, a legal ward, or a child of a person standing
in loco parentis, who is either under age 18, or age 18 or
older and "incapable of self-care because of a mental or physical
disability," i.e., requires assistance or supervision in three
or more activities of daily living such as grooming, bathing,
dressing, eating, cooking, cleaning, shopping, paying bills,
maintaining a residence, using telephones, and so on.
--"Spouse" means a husband or wife as recognized under state
law for purposes of marriage in the state where the employee
resides. Note that the State of Maine does not recognize "common
law" marriage.
--"Parent" means a biological parent or an individual who
stands or stood in loco parentis to an employee when the employee
was a son or daughter as defined above. The term "parent"
specifically excludes "in-laws."
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- What
is the definition of a serious health condition?
There
are six definitions of a serious health condition. A "serious
health condition" is an illness, injury, impairment, or physical
or mental condition that involves one of the following:
(1)Hospital
Care
Inpatient
care (i.e., an overnight stay) in a hospital, hospice, or
residential medical care facility, including any period of
incapacity or subsequent treatment in connection with or consequent
to such inpatient care.
"Incapacity"
means, for purposes of the FMLA, the inability to work, attend
school, or perform other regular daily activities due to the
serious health condition (or due to treatment for the condition,
or due to the need for recovery from the condition).
2)
Absence Plus Treatment
A
period of incapacity of more than three consecutive days (including
any subsequent treatment or period of incapacity relating
to the same condition), that also involves:
a)
Treatment two or more times by a health care provider, by
a nurse or Physician's assistant under direct supervision
of a health care provider, or by a provider of health care
services (e.g., physical therapist) under orders of, or
on referral by, a health care provider;
or
b)
Treatment by a health care provider on at least one occasion
which results in a "regimen of continuing treatment" under
the supervision of the health care provider.
"Treatment"
includes examinations to determine if a serious health condition
exists and evaluations of the condition. Treatment does not
include routine physical examinations, eye examinations, or
dental examinations.
A
"regimen of continuing treatment" includes, for example, a
course of prescription medication (e.g., an antibiotic) or
therapy requiring special equipment to resolve or alleviate
the health condition. A regimen of treatment does not include
the taking of over-the-counter medications such as aspirin,
antihistamines, or salves; or bed-rest, drinking, fluids,
exercise, and other similar activities that can be initiated
without a visit to a health care provider.
3)
Pregnancy
Any
period of incapacity due to pregnancy, or for prenatal care.
4)
Chronic Conditions Requiring Treatments
A
chronic condition which:
a)
Requires periodic visits for treatment by a health care
provider, or by a nurse or physician's assistant under direct
supervision of a health care provider;
and
b)
Continues over an extended period of time (including recurring
episodes of a single underlying condition);
and
c)
may cause episodic rather an a continuing period of incapacity
(e.g., asthma, diabetes, epilepsy, etc,)
5)
Permanent/Long-term Conditions Requiring Supervision
A
period of incapacity which is permanent or long-term due to
a condition for which treatment may not be effective, The employee
or family member must be under the continuing supervision of,
but need not be receiving active treatment by, a health care
provider. Examples include Alzheimer's, a severe stroke, or
the terminal stages of a disease.
6)
Multiple Treatments (Non-Chronic Conditions)
Any
period of absence to receive multiple treatments (including
any period of Recovery therefrom) by a health care provider
or by a provider of health care services under orders of, or
on referral by, a health care provider, either for restorative
surgery after an accident or other injury, or for a condition
that would likely result in a period of incapacity of more than
three consecutive calendar days in the absence of medical intervention
or treatment, such as cancer (chemotherapy, radiation, etc,),
severe arthritis (physical therapy), kidney disease (dialysis).
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- What
is the employee's right to reinstatement?
Employers
must reinstate employees who take FMLA leave to the prior position
or to an equivalent position. An "equivalent position" is one
with equivalent benefits, pay, and other terms and conditions
of employment, without loss of accrued and unused benefits.
There
are some exceptions to the FMLA' s rule regarding reinstatement.
Employees whose employment would have been terminated even if
they had not Taken leave are not protected from the vicissitudes
of modern business. Downsizings, layoffs, and outsourcing may
be implemented even when an affected employee is on FMLA leave.
When the employee seeks restoration, the employer must be able
to show that the employee would not have been employed if he or
she had not taken the leave of absence. Similarly, an employee
may be terminated for a performance or other valid reason if such
termination would occur whether or not the employee was on leave.
Employees
who have not provided employers with an appropriately requested
"fitness for duty" certification may be denied restoration to
work. Employees who have fraudulently obtained FMLA leave may
be denied restoration to work.
Another
exception to the general rule of restoration is for certain highly
paid employees who may be designated as "key employees." A key
employee is an employee who is (1) salaried (not hourly) and (2)
among the top 10% of all employees working within a 75-mile radius
of the key employee's worksite in terms of pay (measured among
all employees, salaried and hourly alike). If an employee is a
key employee, and if the employer has designated the employee
as a key employee at the beginning of the FMLA leave,
the employer may deny restoration if the employer can show that
the such restoration (as opposed to the leave itself) would cause
"substantial and grievous economic injury" to the employer's operations.
--Employers
should consider whether they are able temporarily to replace
or do without the key employee. If permanent replacement is
unavoidable, then the employer should consider the cost of reinstating
the key employee in the course of evaluating whether there would
be substantial and grievous economic injury.
--There
is no precise test for what amounts to substantial and grievous
economic injury .At one end of the spectrum, if the economic
viability of the business would be threatened by restoration
of the key employee, then clearly the test has been met. At
the other end of the spectrum are minor inconveniences and costs
that employers normally encounter in the course of doing business.
Restoring most key employees will fall somewhere in between,
and each case must be evaluated on an individual basis.
--The
test for substantial and grievous economic injury is less stringent
and less difficult to meet than the test for "undue hardship"
under the ADA.
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- What
benefits are employees entitled to under the FMLA?
Unpaid
leave of absence of up to 12 week (usually). See section H below,
as well as section V -F for a discussion of when an employee must
be paid during FMLA leave.
Continuation
of current level of health benefits. An employer must provide
continuous coverage under its health plan to the employee on FMLA
leave on the same terms and conditions as they would have been
provided had the employee continued in employment and not taken
leave. If the employer normally pays for all or part of family
medical coverage, then the employer must continue to pay for the
same proportion of coverage during the FMLA leave.
The
FMLA does not affect other benefits of employment, and the employer
has the right to limit such benefits during FMLA leave. The FMLA
is a "minimum," however; many employers continue some or all of
the employee's other benefits during leave. Also, some employers
may be bound by the terms of collective bargaining agreements
as to which benefits will continue during family and medical leaves
of absence.
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- What
are intermittent leave and a reduced leave schedule?
Intermittent
leave is FMLA leave taken periodically rather than in one. consecutive
period of time. Examples are occasional days off due to severe
migraine headaches, occasional mornings off for prenatal care,
or periodic absences for chemotherapy treatments and recovery
from such treatments.
A
reduced leave schedule is FMLA leave taken in the form of a part-time
schedule. For example, an employee may work half-days for several
weeks after returning to work following a heart attack.
Intermittent
leave or a reduced leave schedule is not required in every. circumstance.
Employers may choose, but are not required, to provide - intermittent
or a reduced leave schedule to employees taking leave for a birth
or placement of a child. For employees taking FMLA leave due to
their own serious health condition or the serious health condition
of a child, parent, or - spouse, intermittent leave or a reduced
leave schedule must be granted when the health care provider certifies
one of the following circumstances:
--The
employee has a serious health condition and a medical need for
leave, and such medical need can be best accommodated through
an intermittent or reduced leave schedule; or
--The
employee's child, parent, or spouse has a serious health condition,
and the health care provider has determined that the employee
is "needed to care for" the family member on an intermittent
or part-time basis. This care includes physical care (when the
family member is unable to attend to his or her own basic needs
or needs transport to obtain treatment) and psychological care
(when comfort and reassurance would be beneficial to a family
member receiving inpatient or at-home care).
The employee must attempt to schedule such leave so as not to
disrupt the employer's operations.
When
the need for intermittent or part-time leave is foreseeable,
the employer may reassign the employee temporarily to an alternative
position that better accommodates the intermittent or part-time
schedule. The alternative position may be lower in status and
responsibility but the employee must receive the same pay and
benefits that he or she normally receives.
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- Substitution
of Paid Leave
Although FMLA leave is unpaid generally, an employer may choose
to require employees to use up any paid leave they have accrued.
The only limitation is that accrued leave may not be used for
anything that it is not normally used for.
For example, if an employer does not normally allow employees
to use "sick days" for taking care of family members, then the
employer may not require the employee to use up accrued "sick
days" for any type of leave except leave taken due to the employee's
own serious health condition. Even if the employer does not choose
to require employees to use up accrued paid leave, the employee
may always choose to use up accrued leave during FMLA leave.
Once the accrued leave has been used up, the remainder of the
leave may be unpaid.
Many employers have short term disability ("STD") policies, or
similar benefits, that provide for whole or partial salary continuation
during illness or injury .In most cases involving workplace injuries,
the employee will receive workers' compensation benefits during
any leave of absence. In either case, employers may not require
employees to use up accrued paid leave during any period of time
covered by STD or workers' compensation benefits.
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- What
certifications and verifications may the employer require?
Employers
may require employees' health care providers to certify that
the employee has a "serious health condition."
--Under
the FMLA, employers must accept certifications from any professional
defined as a "health care provider," including th6 following
categories: doctors of medicine or osteopathy, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors
(for treatments specific to manipulations of the spine to
correct subluxation demonstrable in an X-ray), nurse practitioners,
nurse-midwives, clinical social workers, Christian Science
practitioners (officially listed), and any other health care
provider from whom an employer or the employer's group health
plan will accept certification of a serious health condition
to substantiate a claim for benefits.
--All
of the professionals listed above must be authorized by the
State within which they practice, and must be practicing within
the scope of their authority under State law in order to qualify
as a "health care practitioner" from whom the employer must
accept certification.
When
an employer does not agree with the certification provided by
an employee in response to the employer's initial request for
certification, the employer may seek a second certification
by a health care provider of the employer's choosing and to
be paid for by the employer. Except in geographical areas with
limited access to health care providers, employers may not choose
for the second certification any health care provider with whom
they regularly contract for any purpose. Should the first and
second certifications disagree as to the need for FMLA leave
or the extent of leave that is needed, the employee is entitled
to a third certification by a health care provider that the
employee and the employer mutually agree upon. The third certification
is binding on both the employee and the employer.
When
an employee is taking FMLA leave in the form of intermittent
leave or a reduced leave schedule, the employer may require
periodic recertification of the medical need for such leave.
Except
in cases involving intermittent leave, employers may require
employees. to supply a "fit for duty" certification before allowing
them to return to work.
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- What
is a "Violation" of the FMLA?
The
FMLA prohibits interference with an employee's rights under
the law. More specifically, the following actions or conduct
by employers are considered to be "violations" of the FMLA:
Interference
with, restraint, or denial of an employee's right to take FMLA.
leave.
--Failure
to provide leave or failure to restore to the same or an equivalent
position would generally fall under this category of violation.
--This
category also includes when an employer manipulates the circumstances
in order to avoid responsibilities under the law, such as
by transferring employees to other worksites to avoid reading
the 50-employee threshold, changing the essential functions
of the job just to avoid an employee taking leave, or reducing
an employee's hours simply to avoid allowing that employee
to reach the 1250-hour threshold.
Discrimination
against any employee who has taken or is taking FMLA leave.
--This
includes discriminating against applicants or employees who
have taken FMLA leave. Also, employers may not take FMLA-covered
leave into account in any disciplinary decisions or count
it toward days missed under a "no-fault" attendance policy.
Retaliation
against any person (not only employees) for opposing any illegal
act under the FMLA or for participating in any proceeding undertaken
pursuant to the FMLA (whether in court or with the Department
of Labor)
--"Participation"
includes filing a charge, giving testimony, or giving information
in connection with an inquiry or investigation.
Failing
to adhere to the requirements of the statute or the regulations.
--Thus,
according to the U.S. Department of Labor (DOL), violations
of the FMLA that may subject an employer to liability include
such "technical" violations as a failure to give proper notice.
-
What enforcement rights does the employee have if the employer
violates the FMLA?
Employees
who believe that their rights under the FMLA have been violated
may:
--File
a complaint (or have another person file a complaint on the
employee's behalf) with the DOL; or
--File a private lawsuit (civil action).
The
DOL will investigate any complaints (complete with subpoena power)
and issue an advisory opinion as to whether a violation has occurred.
The DOL also may bring suit on behalf of an aggrieved employee.
Employees generally have two or three years to bring a civil action
against an employer. The two-year statute of limitations applies
generally. In cases in which the employee can show a "willful"
(knowing and intentional) violation, however, the employee has
three years to bring a civil action.
Damages
available in a civil action include:
--lost
pay and benefits;
--in cases in which there are no lost pay or benefits, any
actual monetary losses, e.g., the cost of paying for another
individual to care for a family member with a serious health
condition (up to twelve weeks' worth);
--interest on any amount of lost pay and benefits or actual
monetary losses, if no lost pay and benefits;
--in cases involving a "willful" violation, liquidated damages
in the amount of the lost pay and benefits or actual monetary
losses, if no lost pay and benefits;
--equitable relief such as reinstatement or promotion; and
--attorneys' fees and costs (including expert witness fees).
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- Miscellaneous
Employers are required to post a U.S. Department of Labor (DOL)
notice about the FMLA in a conspicuous place where notices to
employees and applicants are customarily posted.
The actual notice may be obtained from the DOL's Wage and Hour
Division (207-780-3344); ask for "WH Publication 1420." The penalty
for not posting the required notice is $100 per offense. A copy
of the required notice appears as
Appendix C to 29 C.F .R. § 825.
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II.
Overview of Maine's Family and Medical Leave Act (FMLA)
Maine's
Family and Medical Leave Requirements, 26 M.R.S.A. § 843
et seq., apply to any Maine employer with twenty-five employees
total and fifteen or more employees in one location. Such employers
must allow eligible employees to take a leave of absence for up
to ten consecutive weeks in any two years due to certain family
or medical reasons.
The
following guidelines explain how Maine's act differs from the
federal FMLA. Employers who are covered by the federal FMLA should
note that even when an employee is not eligible under the federal
FMLA, he or she may be covered under Maine's FMLR. These employers
must also take note that any aspect of Maine's FMLR which is more
generous to employees than is the federal FMLA must be provided
to any employee eligible under both Acts. Indeed, the employee
always receives the most generous provision whenever the FMLA,
the FMLR, and/or the employer's own policies are in conflict.
- Which
employers are subject to Maine's FMLR?
Any
employer with 25 or more employees, 15 of whom are in one location,
must comply with the FMLR. (Note that employers with fifty or
more employees in Maine may or may not be subject to the federal
Family and Medical Leave Act (see Section I), but will always
be subject to the FMLR).
--"Employee"
includes any person who may be permitted, required, or directed
by an employer in consideration of direct or indirect gain or
profit to engage in any employment but does not include independent
contractors.
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- Which
employees are eligible to take leave under the FMLR?
Under
the FMLR, an employee of a covered employer who works in a workplace
with 15 or more employees is eligible to take family or medical
leave if he or she has been employed by the employer for twelve
(12) consecutive months. Note that under the FMLA, the
requirement is 12 months total with 1250 hours in the past 12
months, but not necessarily 12 consecutive months.
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- What
are the four valid reasons for taking FMLR leave?
Under
the FMLR, an eligible employee may take family and medical leave
(up to ten consecutive weeks in any two years) only for:
--Serious
health condition of the employee;
--The birth of the employee's child;
--The placement of a child 16 years of age or less with the
employee in connection with the adoption of the child by the
employee; or
--A child, parent, or spouse with a serious health condition.
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- What
is the definition of "serious health condition"?
The
FMLR defines "serious health condition" similarly to the way that
the federal FMLA statute defines that term. It is unclear
whether the definitions developed under the U .S. DOL's regulations
will apply, however.
A
"serious health condition" is "an illness, injury, impairment
or physical or mental condition that involves:
A.
Inpatient care in a hospital, hospice or residential medical
care facility;
B. Continuing treatment by a health care provider.
26
M.R.S.A. § 843(6)(1997).
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- What
is the employee's right to reinstatement?
An
employer must restore an employee who has taken family medical
leave to the position held by the employee when the leave commenced
or to a position with equivalent seniority status, employee
benefits, pay and other terms and conditions of employment.
--An
employer may deny restoration if it can prove that the employee
was not restored as normally required because of conditions
unrelated to the employee's exercise of rights pursuant to
the FMLR.
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- What
benefits are employees entitled to during FMLR leave?
Leave
taken pursuant to the FMLR is generally unpaid. Of course, the
employer may provide paid leave for any of the specified reasons
if it chooses to do so.
Also,
the employee may qualify for short-term or long-term
disability insurance benefits, if any. This depends on the policy's
specifications.
No
benefit accrued before the commencement of the family medical
leave may be taken away due to the fact that the employee took
the leave.
An
employer must make it possible for employees to continue all
their employee benefits, including but not limited to
health coverage, but wholly at the employee's expense. Thus,
unlike the FMLA, which requires the employer to continue paying
any share paid by the employer prior to the leave, the FMLR
allows the employer to transfer the entire costs of health premiums
to the employee during leave.
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- How
much leave is required under the FMLR?
Employers
need only give ten consecutive weeks in any two-year
period.
Intermittent
leave or a part-time schedule are not required under the FMLR.
The language "any two-year period" suggests that employers are
required to use a "rolling" leave year rather than a calendar
year or other fixed leave year. (See section V.F.)
Employers
may require thirty (30) days' notice of the need for leave and
of the dates the leave will begin and end, except in cases where
medical emergency prevents the giving of such notice.
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- Substitution
of Paid Leave
The
FMLR is silent with respect to whether employer can require
employees to use up accrued paid leave, such as sick days or
vacation leave, during family and medical leave.
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- May
employers require medical verification and certification?
Employers
may require certification from a physician to verify the need
for leave. With one exception (see below), other practitioners
(e.g., nurses, psychologists, clinical social workers) need
not be accepted by the employer .
Employees
who with the tenets and practice of a recognized church or in
good faith rely on treatment by prayer or other spiritual means
in accordance religious denomination may submit certification
from an accredited practitioner of those healing methods.
The
FMLR is silent with regard to whether or not employers may use
a certification form or what may included in such a form. Maine
employers not covered by the FM LA who wish to use a form may
wish to adopt the form suggested by the U.S. DOL (or one similar
to it). Such a form at least has the blessing of a federal agency
that regulates a law similar to the FMLR, and it seems likely
that the Maine DOL or a court would find the use of such a form
to be reasonable.
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- What
is a violation of the Maine FMLR?
The
prohibitions of the FMLR are similar to those of the FMLA:
Employers
may not interfere with, restrain or deny the exercise of or
the attempt to exercise any right provided by the FMLR.
Employers
may not discriminate against any employee for exercising any
right provided by the FMLR.
Employers
may not retaliate against any employee who opposes any practice
made unlawful by the FMLR.
--The
terms "discriminate" and retaliate include "discharge, fine,
suspend, expel, discipline or in any other manner discriminate."
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- How
may employees enforce their rights?
Employees
may bring a civil action against any employer to enforce their
rights under the FMLR.
Remedies available include:
--An
injunction against any act or practice that violates or may
violate this subchapter, and
--Lost wages and benefits-
--Other pecuniary damages (e.g., home nursing costs or child
care costs), and
--Liquidated damages of $100 for each day the violation continues,
payable to the employee.
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- Miscellaneous
Employers
must post the Maine Department of Labor's poster regarding certain
labor laws, including the FMLR, in an accessible, commonly used
area (an area where employees will see it). This preprinted
notice may be obtained from the Maine DOL Bureau of Labor Standards
(207-624-6400).
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III.
New Legal Developments
This
section will discuss some recent trends in cases decided under
the FMLA.
This
section assumes that the reader is familiar with the previous
sections outlining FMLA basics.
- What
is a Qualifying Reason for FMLA Leave?
Employers
should be wary of overly narrow interpretations of the definitions
of the four qualifying reasons for FMLA.
--Hodgens
v. General Dynamics Corp. ( 1st Cir. 1998). In this
first case to be decided by the First Circuit Court of Appeals
(the federal Appeals Court covering Maine) under the FMLA,
the Court made it clear that it would not be taking a narrow
view of "serious health condition." The court below had dismissed
the case because it found that the employee could not prove
he was entitled to FMLA-protected leave, i.e., that he did
not have a serious health condition. Specifically, his physician
was "never able to diagnose precisely what caused [the employee's]
symptoms." The First Circuit disagreed with this holding,
noting that "[i]t seems unlikely that Congress intended to
punish people who are unlucky enough to develop new diseases
or to suffer serious symptoms for some period of time before
the medical profession is able to diagnose the cause of the
problem." It is an appropriate use ofFMLA leave to diagnose
and treat symptoms that do not necessarily have a specific
diagnosis attached to them, as long as the condition meets
one of the six definitions of "serious health condition" as
defined in the regulations. The Court also found that the
statutory requirement that an individual be "unable to perform"
his or her position in order to qualify for FMLA-protected
leave did not amount to a requirement that the individual
be physically incapacitated to perform the work. Instead,
the Court read the statute to protect absences that are required
for the purposes of diagnosis and treatment of a serious health
condition. For example, the employee must be at the doctor's
office for testing, the employee is "unable to perform" his
or her job during that time.
--Kelley
v. Crosfield Catalyst (7th Cir. 1998). An employee
applied for FMLA leave to travel to another state to take
custody of his daughter after a lengthy legal battle. The
employer denied leave, pointing to the FMLA regulations, which
define "adoption" as the legal process in which an individual
becomes the legal parent of another's child. In this case,
the employee was the child's biological father but was not
her legal father until the legal proceedings were resolved
just before the request for leave. Consequently, he was seeking
leave to take custody after becoming the legal parent of another's
child, and the employer was liable for all damages flowing
from the denial of leave.
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- Employer
Failure to Designate Leave or Notify Employees of Their Rights
&
Responsibilities
Employers who fail to designate a leave of absence as
FMLA leave or who fail to notify employees of their rights
under the FMLA have been held in some cases to have waived
the right to refuse to reinstate employees to their positions
at the end of leave. Nevertheless, some courts have reacted
negatively to the notion that an employer's "technical" violation
of the regulations concerning designation and notification
of rights and responsibilities can serve to give an employee
additional substantive rights. For example:
--Cox
v. Autozone, Inc. (M.D. Ala. 1998). A manager at a
retail store took temporary disability leave due to complications
related to her pregnancy. Although the leave of absence qualified
under the FMLA, the employer failed to designate it as such.
The manager stayed out of work for 15 weeks, receiving 13
weeks of short-term disability (STD) benefits (the employer's
maximum) and 2 unpaid weeks of leave. When she returned she
was given the position of assistant manager, with a lower
salary .The employer claimed that because she exceeded her
FMLA-protected leave of 12 weeks, it was not required to return
her to the position of manager. The employee claimed that
under the regulations, the failure to designate her leave
as FMLA leave and to advise her that her right to restoration
would end after 12 weeks meant that the employer had to return
her to the same or a similar position. The Court found that
the employee was not entitled to any protections under the
FMLA because she exceeded the 12 weeks provided for under
the statute, which offers 12 weeks of job protection, and
no more. The regulations function to provide the employee
with more job-protected leave when the employer fails to inform
employees that they are using up their FMLA-covered leave.
The Court found this aspect of the regulations to be "inconsistent
with a fair reading of the FMLA." Therefore, in this respect,
the regulations are invalid.
--Santos
v. Shields Health Group (D. Mass. 1998). After 15
weeks of leave in which an employee never provided a medical
certification and never provided a definite return to work
date, she was terminated from her employment. She sued her
employer alleging that it had failed to provided adequate
notice of her rights and responsibilities (such as certification
and providing an expected return to work date). The court
held that even if we give the employee the benefit of the
doubt, and assume that the employee had a serious health condition
that entitled her to FMLA leave, there was no interference
with her rights under the statute. She was entitled to 12
weeks of leave with job protection, and she received it. She
was indisputably unable to perform her job 15 weeks after
starting her leave, so even if she had been notified of her
rights and responsibilities, reinstatement would not have
been possible after 12 weeks.
--Sherry
v. Protection, Inc. (N.D. Ill. 1997). An employee
asked for time off from work to care for his father, who had
been diagnosed with terminal liver cancer. His first two requests
were denied, but a month later, he again asked for and this
time received time off from work. His employer never designated
the leave as "FMLA leave" or provided the employee with any
information about his rights and responsibilities under the
FMLA. The employee did not report to work until two weeks
after his father's death. The employer demoted him, claiming
that the employee had "forfeited" his rights under the FMLA
by failing to return to work for two weeks after the FMLA
-covered leave had ended (i.e., the serious health condition
of his father, which by definition ended with his father's
death). The Court found against the employer, noting that
it was the employer's duty under the regulations to provide
the employee with written guidance as to his rights and responsibilities.
Having failed to do so, the employer may not penalize the
employee for failing to uphold any of the responsibilities
that should have been included in such written guidance.
- Employee
Failure to Give Notice or Request Leave
Employees
must give employers enough information about the need to take
FMLA
leave that a reasonable employer understands that the employee's
need for leave is due to an FMLA-qualifying reason.
--Szabo
v. Trustees of Boston University (D. Mass. 1998).
An employee's pregnancy ended in a miscarriage and she subsequently
informed her employer that she was "thinking of taking some
time off." She then took two weeks off, but never told her
employer about her miscarriage. After two weeks, still unaware
of the miscarriage, her employer contacted her to tell her
that she should return to work. The employee did return to
work at that time, at the same salary and same position as
before her miscarriage. Six months later, the employee was
terminated for excessive absenteeism, including the two weeks
following her miscarriage. The employee sued claiming that
her absence due to the miscarriage was protected by the FMLA.
The employer defended by pointing out that the employee never
told anyone at work she had had a miscarriage, and that the
employee had given insufficient notice for the employer to
apprehend that the employee had requested or required FMLA
leave. The Court agreed, noting that the test was whether
the information given to the employer was "sufficient to reasonably
apprise it of the employee's request to take time off for
a serious health condition." Here, the employee's statement
that she was "thinking of taking some time off' was not "sufficiently
concrete or specific."
--Byers
v. Toyota Motor Manufacturing (E.D. Ken. 1997). An
employee voluntarily admitted himself into a hospital for
treatment of depression. He remained there for nine days and
did not call his employer until the day after he left the
hospital. Meanwhile, pursuant to a no-call, no-show policy
that clearly stated that three days' absence with no communication
from the employee was cause for termination, the employer
had terminated the employee after the third day with no word
from the employee. The employee argued that the termination
violated the FMLA because his absence was due to a serious
health condition. The Court disagreed and held that the employer
was not required to grant an employee FMLA leave "when it
does not learn of the need for leave until after termination."
(emphasis in original) At the same time, an employee need
not request or desire a leave of absence under the FMLA for
the employer legally to place the employee on FMLA leave.
If the employee is eligible for FMLA leave and cannot perform
his or her job due to a qualifying reason (for example, his
or her own serious health condition), the employer may place
the employee on a leave of absence and count the time toward
the FMLA allotment of 12 weeks.
--Harvender
v. Norton Co. (N.D.N.Y. 1997). A pregnant employee
did not wish to stop working during her pregnancy. Nevertheless,
her physician provided her employer with a note stating that
she could not work with chemicals during her pregnancy. Working
with chemicals was a key part of the employee's job. The employer
placed her on FMLA leave. The plaintiff argued that placing
her on FMLA leave involuntarily was a violation of the Act.
The Court found the lack of a request for FMLA leave to be
"irrelevant" and granted summary judgment for the employer.
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- Evolving
Concepts of FMLA Violations
Some
recent decisions have provided welcome clarification of what
constitutes or does not constitute -an FMLA violation.
--Gunnell
v. Utah Valley State College (lOth Cir. 1998). An
employee claimed that she was terminated for taking leave
covered by the FMLA. She was unable, however, to provide evidence
that her termination was not due to other reasons, as the
employer asserted. The court emphasized that "an employee
who requests FMLA leave would have no greater protection against
his or her employment being terminated for reasons not related
to his or her FMLA request than he or she did before submitting
the request." Unless the employee can show that the termination
was "because of her FMLA request," the court must conclude
that "any reason for terminating [her] employment would not
involved FMLA, and consequently that statute can offer [the
employee] no relief."
--Herman
v. Princeton City Schools (S.D. Ohio 1997). An employer
illegally "interfered" with its employees FMLA rights when
it failed to advise them of those rights as required by the
DOL's regulations, including the right to maintain health
benefits at the same cost to the employee. The employees were
entitled to reimbursement for the employer's share of their
health insurance premiums, which they had paid during their
leave, as well as liquidated damages (i.e., double damages),
as well as reasonable attorneys' fees and costs. The Court
also issued an injunction against future interference.
See
Harvender v. Norton Co. (N.D.N.Y. 1997) above
for a description of a case in which putting an employee on
involuntary FMLA leave is not a violation of the FMLA.
--Duckworth
v. Pratt & Whitney (1st Cir. 1998). An employee
took FMLA-covered leave in 1994. In December 1194, he was
laid off. On a form regarding his "rehire" status, a supervisor
wrote that his attendance was "poor." In 1996, the former
employee applied for another job at Pratt & Whitney but
did not get it. He sued, alleging that he did not get the
job because of the "poor" attendance rating, which was based
entirely on absences that were protected by the FMLA. The
employee argued that this alleged basis for the failure to
rehire amounted to "interference" with his FMLA rights. The
lower court dismissed the case on the grounds that the FMLA
protects the rights of "employees" to be free from interference,
but not former employees. The First Circuit Court of Appeals
reinstated the case, reasoning that the term "employees" should
be read broadly -in the spirit of other, similar cases decided
under Title VII -to include former as well as current employees.
Thus, the former employee had a right to proceed with his
suit and attempt to prove that failure to rehire was illegal
"interference."
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- Courts'
Rejection of Portions of the Department of Labor Regulations
In
some recent cases, courts have rejected as invalid particular
sections of the U.S.
DOL
regulations. For example:
--Seaman
v. Downtown Partnership of Baltimore (D. Md. 1998).
An employer told an employee she could take FMLA leave even
though she did not meet the 12-month and 1250-hour eligibility
requirements. While she was on leave, the employer contacted
her and told her that her job was "in jeopardy ." The job
was later eliminated. The employee sued, citing a DOL regulation
that provides that once an employer confirms an employee's
eligibility for FMLA leave, "the employer may not subsequently
challenge the employee's eligibility." (See 29 C.F.R. §
825.110(d).) The court found this section of the regulations
to be invalid because it "directly contradicts" the eligibility
requirements as set forth by Congress in the statute itself.
In short, Congress did not intend to give employees who did
not meet the 12-month and 1250- hour requirements substantive
rights under the FMLA.
See
Cox v. Autozone, Inc. (M.D. Ala. 1998) above
for a description of a case in which a Court found that the
U.S. DOL regulation providing employees with additional leave
when employers fail to designate a leave of absence as FMLA
leave were invalid because they were inconsistent with the
language of the statute itself. Similarly, see Santos v. Shields
Health Group (D. Mass. -t 1998) above for a description of
a case in which the court held (similarly to that in Cox)
that a technical violation does not render an employer liable
to an employee who received her 12 weeks of leave but was
unable to return to work at the end of the job-protected 12
weeks.
--Cline
v. Wal-Mart Stores (4th Cir. 1998). An employee with
five day of paid vacation time accrued sought to take FMLA
leave. The employer failed to inform an employee before the
commencement of his leave that his accrued vacation time would
be used up during his FMLA leave. The Court found that the
employer must provide the employee with 12 weeks of unpaid
leave followed by five days of vacation, in effect giving
the employee 13 consecutive days off. Because the employee
had returned to work after the expiration of 12 weeks but
before the 13th week was up, he was entitled to restoration
to the same or a similar job.
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- Other
Recent Cases
A
federal court in Maine has ruled that it is for the jury to
decide whether or not reinstatement to a position with different
duties and/or on a different shift is restoration to an "equivalent"
position after FMLA-covered leave.
--Watkins
v. J & S. Oil Co. (D. Me. 1997). Before his first
FMLA leave, the employee was a station manager. He was restored
to that position after taking a five-week leave following a
heart attack in 1994. Several weeks later, he suffered another
heart attack and underwent surgery .During his FMLA- covered
leave, the employer notified him that he was being replaced
as station manager. Over the next few weeks, the employer offered
him several alternative positions. The Court found that, as
a matter of law, replacing the employee as station manager in
and of itself did not subject the employer to liability. Beyond
that, it was for the jury to decide whether he had been properly
restored to "an equivalent" position.
Employers
need not count any hours except those actually worked toward
the 1250 hours needed to qualify for FMLA leave.
--Clark
v. Allegheny University Hospital (E.D. Pa. 1998). An
employee was terminated for excessive absenteeism. He sued,
claiming that many of his absences were FMLA-covered due to
his own serious health condition and his need to take leave
to take care of his son, who had a chronic serious health condition.
The employer argued that he had worked only 1,03.7 of the required
1,250 hours and therefore had no rights under the FMLA. The
employee argued that both the time off due to his own or his
son's serious health conditions and the time off due to disciplinary
suspensions should have counted toward meeting the 1,250 hour
level. The Court disagreed with the employee. Neither paid nor
unpaid leave is included in calculating the required hours of
service under the FMLA, the Court held. Employers should count
actual days worked, and not medical leave, vacation days, holidays,
sick days, personal days, days of suspension, or any other time
off from work.
An
employee's failure to comply with an employer's request for
a second certification of the employee's alleged serious health
condition may permissibly result in the denial of restoration
to the same or a similar position or termination.
--Diaz
v. Fort Wayne Foundry Corp. (7th Cir. 1997). The employee
asked for FMLA leave due to his bronchitis. His physician then
submitted a certification form stating he needed FMLA leave
due to irritable bowel syndrome, hiatal hernia, gastroesophageal
reflux, and a duodenal peptic ulcer. Understandably suspicious,
since none of these conditions appear to be related to "bronchitis,"
the employer asked for a second certification. The employee
failed to show up for the scheduled examination for the purposes
of the second certification. The employee did not deny that
the company had "reason to doubt the validity of the certification,"
as required by the regulations, but failed to appear for the
required examination. " An employee who fails to cooperate with
the second-opinion process under [the FMLA] loses the benefit
of leave under [the FMLA]." Once the employee missed the appointment
with no explanation, he as " A WOL and could not invoke the
FMLA to avoid discharge." The "fit for duty" certificate provision
of the FMLA recently came under scrutiny in a Massachusetts
case.
--Albert
v. Runyon (D. Mass. 1998). An employee took leave under
the FMLA due to clinical depression which she alleged was the
result of sexual discrimination and harassment at her employer.
After her treating psychologist released her to work with the
caveat that she be free from discrimination and harassment,
the employer informed the employee that the psychologist's certification
was inadequate to enable the employer to assess her ability
to work, and that she had to undergo an examination with a physician
selected by the employer. She refused, and when she was not
reinstated, she sued, alleging that her psychologist's fit for
duty note was enough pursuant to the U.S. DOL regulations, which
do not authorize employers to seek second opinions for fit for
duty certifications. The court agreed, holding that employers
must rely upon the employee's own treating health care providers'
evaluations regarding fitness to return to work.
--Porter
v. U.S. Alumoweld Co. (4th Cir. 1997). In contrast to
the Albert v. Runyon case described above, the
Fourth Circuit Court of Appeals ruled that an employer could
require an employee returning from FMLA leave taken due to back
surgery to submit to an examination prior to restoration. The
key difference appears to be that in the Fourth Circuit case,
the employer had grounds under the Americans with Disabilities
Act to request such an examination.
Courts
have fairly universally found that the FMLA does not provide
for compensatory or punitive damages. Recently, however, a court
clarified that damages for the "loss of job security" could
be included in the damages called "other compensation" available
under the FMLA :
--Lloyd
v. Wyoming Valley Health Care System, Inc. (M.D. Pa.
1998). An employee returning from FMLA leave was placed in a
similar job with thesame pay, but different supervisory duties.
After a workplace injury requiring additional leave, the employee
was placed in a third position with the same pay but different
duties. Six months after the second return to work, the employee's
compensation scheme was altered to a base salary with an incentive
schedule. The result of the switch was a decrease in pay for
the employee. He sued under the FMLA, alleging that the phrase
"other compensation" in the FMLA's damages section included
both compensatory damages for alleged emotional distress and
damages for the loss of economic security represented by the
switch in compensation plans. The court disagreed regarding
emotional distress damages and held, as have other courts, that
such damages are not available under the FMLA. The court went
on to hold in an apparent case of first impression that damages
for the loss of economicsecurity were available if the employee
could prove that he had acquired the right to such security
before he went out on FMLA leave.
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IV.
Intersecting Legal Obligations
In
addition to the FMLA and FMLR, various other state and federal
statutes provide employees with rights to leaves of absence. This
section provides an outline of what those other statutes require
of employers and how they interact with the FMLA/FMLR.
- The
Duty of Reasonable Accommodation Under the ADA & MHRA
The
Americans with Disabilities Act (ADA) and the Maine Human Rights
Act (MHRA) place a duty of reasonable accommodation upon employers.
An employee who is a "qualified individual with a disability"
has a right to reasonable accommodations that are necessary to
enable him or her to perform the essential functions of his or
her position.
A
leave of absence is not automatically a reasonable accommodation.
The leave of absence must be reasonably calculated to enable the
employee to return to work and possibly with the addition of other
reasonable accommodations, be able to perform the essential functions
of the job. Courts have consistently held that the ADA does not
acquire the granting of indefinite leaves of absence. However,
if an employee can perform all essential functions while working
a part-time schedule, the employer may be required to allow the
employee to work part-time indefinitely.
Thus,
the ADA and MHRA may require employers to provide leave to employees
with disabilities even when they are not eligible for FMLA or
FMLR leave. Alternately, the ADA and MHRA may require employers
to provide more than 12 weeks of leave to employees with disabilities.
Another possibility is that a reasonable accommodation would be
to provide intermittent or part-time leave for an extended period.
Each
case should be analyzed independently. Whether or not the provision
of leave above and beyond that which is required by the FMLA or
FMLR is a "reasonable accommodation" depends on the facts and
circumstances of each individual's impairment, position, department,
prognosis, and so on.
If
an employee with a disability makes a request for time off from
the job and the employee makes it clear that the request for time
off is related in some way to the disability, employers should
treat the request as one for reasonable accommodation. The request
mayor may not entitle the employee to leave under the FMLA/FMLR.
Above and beyond that, however, employers are not required to
grant the request for leave. The duty of reasonable accommodation
requires employers and employee to engage in an informal and interactive
dialogue in order to determine the appropriate accommodations.
Thus, employers need not simply accede to a request for more leave
from an employee with a disability. Unlike the FMLA/FMLR, which
provide an automatic right to leave if the employee is eligible,
the ADA and MHRA require only that the employer provide whatever
reasonable accommodation is necessary to enable the employee to
perform the job. If there are two such reasonable accommodations
and both will enable the employee to perform the essential functions,
the employer may choose which accommodation it wishes to implement.
We
generally suggest a five-step process for determining what is
a reasonable accommodation in any given situation involving a
request for accommodation from an employee with a disability:
1.
The employer identifies the essential functions of the job.
2.
The employee and the employer together identify all barriers to
the performance of the essential functions of the job caused by
the employee's disability.
3.
The employee and the employer identify all possible solutions
or ways to eliminate the barriers identified In Step 2.
4.
The employer determines which possible solutions are reasonable
accommodations.
5.
The employer selects and implements one or more of the identified
reasonable accommodations.
Leave
provided as a reasonable accommodation under the ADA or MHRA generally
may be unpaid leave, although it may coincide with benefits such
as STD, LTD, workers' compensation benefits, and so on.
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- Workers'
Compensation and the Absent Worker.
Maine's
Workers' Compensation Act (WCA) provides for wage loss benefits
to employees when they are not "able to work" due to workplace
injuries. This obligation exists even if an employee is terminated
for cause. However, if an employee unreasonably quits a job or
turns down an offer of reasonable employment the employee will
likely be held to have forfeited all wage loss benefits.
Workers'
compensation is not due until the worker has missed 7 days of
work. In addition, the employer has the right to direct the employee's
medical care for the first 10 days of treatment. A health care
provider should be selected who is accessible and who is familiar
with the employer's workplace and light duty job opportunities
and policies. By using these tools, a vast majority of claims
that, before the 1993 reforms would have resulted in lost time,
are now "nipped in the bud" and processed without litigation or
controversy or even ill will.
In
order to keep workers at work, many employers have "light-duty"
programs for employees who have suffered workplace injuries. Some
employers go beyond what would be a "reasonable accommodation"
under the ADA or WCA, although the most extreme examples of "make
work" should generally be avoided.
As
a baseline, however, like the ADA, the WCA requires that the employer
effect reasonable accommodations to return the injured worker
to the work force. Under
Section
218 of the WCA, this obligation has a durational limit: 3 years
from the date of injury for an employer with over 200 employees
and 1 year for smaller employers. The employer must first reinstate
the worker to the original job, providing a reasonable accommodation
if needed. If that job does not exist -and the employer need not
keep it open then the employer must reinstate the worker to another
position that is available and suitable. The employer need not
create work under the WCA. Interestingly, the sanction for failure
to accommodate is that the employer is disqualified from exercising
any rights it may have to reduce or terminate benefits. Thus,
if no benefits are being paid, the remedy is meaningless.
The
WCA's prohibitions against discrimination are worth noting due
to the large number of cases litigated in this arena. The prohibition
against discrimination for having asserted a workers' compensation
claim is now found at 39-A M.R.S.A. §353:
An
employee may not be discriminated against by any employer in any
way for testifying or asserting any claim under this Act. Any
employee who is so discriminated against may file a petition alleging
a violation of this section. * * *. If the employee prevails at
this hearing, the hearing officer may award the employee reinstatement
to the employee's previous job, payment of back wages, re-establishment
of employee benefits and reasonable attorney's fees.
This
Section applies only to an employer against whom the employee
has testified or asserted a claim under this Act. Discrimination
by an employer who is not the same employer against whom the employee
has testified or asserted a claim under this Act is governed by
Title 5, Section 4572, subsection 1, paragraph A."
The
Law Court distilled this test into one of whether a decision to
terminate "was rooted substantially or significantly in the employee's
exercise of his rights under the Workers' Compensation Act." Delano
v. City of South Portland 405 A.2d 222 (Me. 1979); Lindsey
v. Great Northern Paper Co., 532 A.2d 151 (Me. 1987).
These
claims are increasingly prevalent today. One reason is that Section
353 still provides for attorney's fees while such fees can no
longer be recovered in ordinary claims for indemnity or other
benefits except as a percentage under Section 325. Thus, in practical
terms, a worker who is partially disabled and has been terminated
may be more likely to obtain legal representation than one who
is merely partially disabled but not terminated. Another reason
is that these claims are excluded from the standard workers, compensation
policy and so all damages and defense costs are borne by the employer.
Often a terminated employee will join the employer in a claim
for indemnity or related benefits in the hope that the employer
will sweeten the settlement pot instead of having to defend the
case through formal hearing.
Some
employees, however, cannot be returned to work. Before deciding
to terminate such an employee, an employer should understand that
if the employee's whole body permanent impairment exceeds 11.8%
and if the partially disabled worker is unable to obtain employment
elsewhere, the insurer may in theory be responsible for lifetime
benefits instead of the usual 5 year limit that applies. Finally,
employers should have a policy that governs the absent worker,
such as termination after 6 months of absence, although the employer
should understand that in some cases the policy should be modified
as an accommodation.
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- Gender
Discrimination (Title VII and the Pregnancy Discrimination Act).
The
Pregnancy Discrimination Act is an amendment to Title VII of the
Civil Rights Act of 1964, intended to make clear that the prohibition
in Title VII against discrimination on the basis of sex includes
discrimination "because of or on the basis of pregnancy, child
birth or related medical conditions." 42 U.S.C. § 2000e(k).
The statute does not create any independent right to leave of
absence or fringe benefits for pregnant women: instead, it requires
an employer to treat women temporarily disabled because of pregnancy
or related medical conditions the same as it would treat any other
employee subject to a temporary disability. This may include leaves
of absence, job modifications, or other accommodations, If other
employees who are temporarily disabled may take leave with pay
or with fringe benefits, women who are temporarily disabled by
pregnancy or related conditions must be afforded the same opportunities.
Conversely, an employer may not require an employee to take leave
if she is physically able to continue working.
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- Collective
Bargaining Agreements.
The
employee rights established by the FMLA supercede provisions of
any collective bargaining agreement (CBA) that contradict those
rights. For example, the FMLA expressly provides that "a provision
of a CBA that provides for reinstatement to a position that is
not equivalent because of a seniority (e.g., provides lesser pay)
is superceded by FMLA."
If
the CBA (or for that matter, any employer plan) provides rights
to leave than the FMLA does, the FMLA does not require the extension
of FMLA rights to that period of leave. For example, if a CBA
calls for 16 weeks of leave, the last four weeks of leave need
not include health benefits or the right to reinstatement to the
same or an equivalent position unless the CBA provides for such
benefits. Note, however, that it is very important to communicate
to the employee when notice is provided regarding any changes
that occur after the leave converts from FMLA-covered to leave
to discretionary leave.
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- Employee
Benefits (COBRA & ERISA)
The
taking of FMLA or FMLR leave is not a "qualifying event" under
COBRA. which would trigger the notice requirements of that statute.
Provided that the employer is not prepared to continue medical
benefits during any additional leave provided, an employee's failure
to return to work after an FMLA leave will most likely be a qualifying
event under COBRA. At that point in time, the employer must send
the employee the required notification. A lapse in payments on
the employee's part during an FMLA leave will also be deemed a
qualifying event in most cases.
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- Military
Leave (USERRA & Maine's Military Leave Law)
- Federal
Law
Under
the federal Uniformed Services Employment and Reemployment Rights
Act of 1994 {USERRA), no employer (defined as any person or
entity that pays wages or has control of employment opportunities)
may discriminate against an employee because of that employee's
membership or participation in federal or state military forces.
An employee may take a military leave for active duty, reserve
duty, or National Guard duty. In general, an employee who takes
a military leave of up to five years must be reinstated to his
or her old job or a job of similar seniority, status, pay, and
benefits. There are important exceptions to the five year limit,
including initial enlistment’s that last longer than five
years, periodic training duty, and involuntary active duty extensions
and recalls, especially during a time of national emergency.
Under
USERRA, employers must restore returning service members to
the jobs that they would have attained had they not been
absent for military service. This rule -- known as the "escalator
principle" --pertained under the previous military leave
statute as well. One important limitation to the escalator principle
is that the returning employee must be qualified to perform
the duties of the position to which he or she is entitled. If
qualified, then the service member must be placed in the position
he or she would have attained, or a position with like seniority,
status, and pay. If not qualified, the employee is entitled
to the position in which he or she was employed on the date
of the commencement of the military service, or to a position
of like seniority, status and pay.
If
a returning employee has a disability incurred or aggravated
during military service, and that disability renders the employee
unqualified, even with reasonable accommodations, the employer
has certain special obligations. The employer must attempt to
place the disabled employee in any other position which is equivalent
in seniority, status, and pay, and for which the disabled employee
is qualified, with reasonable accommodations if necessary .If
such a placement is not possible, then the employer should place
the disabled employee in the nearest approximation in terms
of seniority, status, and pay. Additionally, service members
convalescing from injuries received during service may have
up to two years to return to work.
USERRA
offers a great deal of protection in terms of employee rights
and benefits. While the employee on military leave is not entitled
to receive more benefits than if he or she had maintained continuous
employment, the list of entitlements is long:
--the
returning employee is entitled to the seniority (and its attendant
benefits) that he or she would have accrued if employed continuously;
--the returning employee who served for over thirty days is
entitled to coverage under the employer's health plan for
eighteen months, to be paid for by the employee in a COBRA-like
schedule; those who serve for 30 days or less are entitled
to a continuation of a health coverage as if there had no
interruption of employment;
--the returning employee is entitled to maintain his or her
accrual of benefits under any pension plan; and
--the returning employee may not be discharged, except for
cause, within one year if the service period was over 180
days; if the service period was between 30 and 180 days, the
returning employee may not be discharged within 180 days.
- Maine
Law
Maine
law protects members of any reserve military forces, including
the state
Military
forces and the reserves of the United States Armed Forces, from
suffering any harm as employees as the result of their military
obligations. Although the law is in most cases superfluous,
because USERRA protects employees whom serve in all bona fide
federal or state military forces; there may be times when the
law do not overlap one hundred percent.
Note that employers may request confirmation from the Adjutant
General, Camp
Keyes, Augusta, for members of any state military forces or
from any applicable reserve component headquarters, of satisfactory
completion of an employee's military duties upon return to civilian
employment or immediately thereafter.
Employees who are still qualified to perform the duties of their
position must be reinstated without loss of pay, seniority,
benefits, status, and any other incidences of advantages of
employment as if they had remained continuously employed. Note
that as with USERRA, the state law does not provide for mere
reinstatement to the same position, but rather, it implements
the escalator principle.
Under state law, a leave of absence for military training is
not allowed to affect the employee's right to receive normal
vacation, sick leave, bonus, advancement and other advantages
of employment that are normally provided to individuals in the
employee's particular position.
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of contents
V.
Tips and Pointers for Administering FMLA Leaves
- Written
Policies and General Administrative Issues
It
is important to provide employees with a complete and comprehensible
summary of their rights and responsibilities under the FMLA. Well-informed
employees will be less likely to attempt to abuse your policy,
but in my experience, no more or less likely to attempt to take
legitimate leave. When employees request leave, inform them in
writing again and more specifically of their rights and responsibilities.
Provide Department of Labor publications if available. Give the
employee another copy of the employer's FMLA policy at the time
he or she gives notice of the need for leave. An added bonus will
be the prevention of litigation. Employees bring claims when they
feel they have been treated unfairly in some way. If the policy
on which discipline or termination is based is clearly communicated
to the employee, and the employer follows the policy, the employer
has done a significant amount to prevent litigation.
- General
Absenteeism Policies
Being
covered by the FMLA does not mean that employers cannot enforce
policies aimed at controlling absenteeism. At the same, courts
have held, and the law appears to be very clear, that absences
taken for a valid FMLA-qualifying reason may not be counted
against the employee under a "no-fault" absenteeism policy.
Of course, this assumes that the employee has given the employer
appropriate notice that leave is needed for an FMLA- qualifying
reason. The employee is not required to say any "magic words"
-such as "FMLA" or "family medical leave" or "Family and Medical
Leave Act." The employee need only ask it clear that (1) a
leave of absence is being requested or is required, and (2)
there is likelihood that the reason for the request or requirement
is an FMLA-qualifying reason. Despite some recent decisions
cutting against employees on this issue, prudent employers
will assume that the DOL or the jury will give the employee
the benefit of the doubt when there is some question as to
whether the employee gave notice of FMLA leave.
One of the keys to enforcing absenteeism policies, of course,
is to have one. Many employers do not actually have a written
policy. While the policy should always contain qualifiers
that reserve to the employer the necessary flexibility to
comply with the reasonable accommodation requirements of the
ADA, the MHRA, and workers compensation laws, employers should
in general have a policy that describes when an employee
is subject to discipline or termination due to absence from
work.
--If
you choose to adopt a written absenteeism policy that provides,
for example, that a certain number of unexcused absences
will result in discipline up to and including termination,
be sure to enforce it once it has been promulgated; enforcement
only in selected cases may result in discrimination charges.
Even if you choose not to specify how many absences, you
must still be consistent in the enforcement of your policy.
--Audit (or have legal counsel audit) all written policies
to insure that they comply with the applicable laws and
do not contradict each other. While it is more common for
employers to offer too little leave, we have performed such
audits only to find that employers are providing more leave
than necessary, especially when there are separate "maternity
leave" and "FMLA leave" policies.
--Promulgate policies that are accurate, easy to administer,
and comprehensible. Policies in language that employees
cannot understand will only add to employee anxiety and
confusion about leave policies. Providing employees with
clearly written policies that tell them exactly what they
are entitled to removes uncertainty.
--Audit enforcement of the written policies, to make sure
that supervisors understand the policies and are not granting
more leave than necessary Provide supervisor training as
necessary. Even-handed enforcement will help with employee
morale as well; employees are often quick to believe that
their co-workers are "getting away" with something.
--Centralize administration of all absenteeism and leave
policies to the human resources department and train supervisors
not to handle leave requests on their own.
- FMLA
Policies.
Many employers fail to realize that if the employer has an employee
handbook or any other collection of policies that is normally
distributed to employees, which most employers do, it is
mandatory under the FMLA to have a written FMLA policy that
is included in the handbook or other collection of policies.
The FMLR does not have a similar mandatory provision, but we
still recommend having a written policy for distribution to
employees. Assuming the employer has an employee handbook or
collection of policies, it must include a written FMLA policy.
The employer's written FMLA policy should specify in some detail
the employee's rights and responsibilities under the FMLA and
the employer's policies for notice, certification, benefits
during leave, and return to work.
If the employer does not have a handbook or other set of policies
that is distributed to employees on a regular basis, the employer
must always provide written guidance to an employee concerning
the general provisions of the FMLA and/or the employer's FMLA
policy whenever notice is given by the employee that he or she
needs to take leave for a potentially FMLA-qualifying reason.
This requirement is different from the specific notice requirements
listed in Section V.C below. Such guidance may be disseminated
through a preprinted document such as the DOL 's Fact Sheet
on the FMLA, and/or in a document prepared by the employer.
Specific Policy Content:
The employer should determine its position on substituted paid
leave policy (required or voluntary) and incorporate this position
into its written policy. The employer should also specify whether
the leave year will be fixed or rolling.
Employers may wish to require advance notice of foreseeable
FMLA leave. As long as it is in the handbook or policy, employers
may require up to 30 days' advance notice from employees requesting
leave whenever practicable. If the employee fails to provide
30 days' notice of a leave request (and if the leave was foreseeable
30 days in advance), the employer has the right to delay the
commencement of the requested leave until 30 days from receipt
of notice. The employer may always waive the notice requirement.
When a medical emergency arises, notice will of course often
be impossible and employers cannot require it. (Note that notice
may be given by the employee, or if necessary, the employee's
spokesperson (e.g., spouse or other responsible party), in person,
by telephone, by telegraph, or by facsimile.)
- FMLR
Policies
Many employers covered by the Maine FMLR but not the FMLA already
have either a written policy concerning leaves of absence, which
provides some predictability to employees. Others have only
an oral policy that changes over time and context.
While some employers have decided to avoid written policies
in order to maximize "flexibility," others have no written policies
simply because they have never gotten around to writing one.
An employer subject to state leave statutes --and in truth,
every employer -- should probably have a written leave of absence
policy. Without one, the employer will find it difficult to
comply with its obligations under the law.1 For example; every
Maine employer is subject to the requirements of the Maine
Human Rights Act with regard to pregnancy discrimination and
reasonable accommodation (see Section IV), or the Maine
Workers' Compensation Act. The best practice is to have a policy
in place before the legal necessity arises.
There
is no question that the notion of retaining "flexibility"
can be appealing. Uniform rules can seem "rigid" or "inhumane"
under certain circumstances. It is important to remember that
in some cases, if an employer applies a rule too uniformly
it could lead to liability under the "reasonable accommodation"
provisions of various statutes. Employers must be flexible
enough to explore possible accommodations involving leaves
of absence.
Family
and medical leave statutes are just one type of law governing
entitlement to leaves and benefits. Other types of legally
mandated leaves include military leave, and leaves required
by "reasonable accommodation" provisions of anti-discrimination
statutes as the Americans with Disabilities Act or workers'
compensation laws. Employers may want to include information
about other leaves of absence they provide, such as sick
days, vacations, funeral leave, jury duty leave, personal
days, etc., in their written policies
Moreover,
many employers believe that it is important to handle each employee's
leave request individually, and that rigid rules are bad for
morale.
On the other hand, uniform rules are easier for human resources
personnel to administer and for employees to understand. A uniform
rule is the best insurance against violations of Statutes mandating
certain types of leave. A uniform policy promotes ease of understanding,
ease of administration, and in some circumstances, may help
avoid discrimination claims.
The
best practice is to have a definite, written policy that has
built-in flexibility to cope with documented special needs
of employees. From a litigation risk standpoint, it is necessary
to balance the risk of discrimination charges based on disparate
treatment with the risk of discrimination charges based on
a failure to make reasonable accommodations to the needs of
employees with disabilities. Any leave of absence policy should
provide that it is subject to the requirements of federal
and state law. Even if employers choose to write their own
employee handbooks and leave policies, I recommend that they
have their legal counsel review their policies periodically
to insure compliance with the ever-changing regulatory framework.
Employers
should coordinate fringe benefits programs with leave policies.
For example, if an employee will be paying for any benefits
during an unpaid leave of absence, the employer and employee
must make arrangements for the employee to pay the required
premiums. These arrangements should be made at the commencement
of the leave, not later. Note that the FMLA has a limited
number of specific options for how this may be accomplished
(described below), which employers subject only to Maine's
Family Medical Leave Requirements may use as well. In general,
an employer's written policies should clearly state how various
fringe benefits will be handled during a leave of absence.
Clear policies are necessary both to inform the employees
of their rights and to assist the administrators in properly
administering the program.
In
short, employers must evaluate their own administrative and
business needs and the potential needs of their employees, always
keeping in mind the statutory regulatory framework to which
the policy must comply.
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- Importance
of Designation & Notice
The
employer's obligations under the FMLA's designation and notice
provisions of the DOL's regulations once an employee has given
notice of the need for leave are probably the least understood
and most frequently violated provisions. Below is an outline of
the specific actions the employer must take to provide employees
with notice that their rights or responsibilities under the FMLA
are being affected in some way. Note that all these requirements
must be carried out within a "reasonable time after notice
for leave is given by the employee -within one or two business
days if feasible." Failure to designate and provide notice
in compliance with the FMLA is technically a violation of the
FMLA, and may in some instances lead directly to liability, even
when the employee receives 12 weeks of leave with health benefits
intact!
- Designation
of FMLA leave.
Once
the employer has received notice from the employee that he
or she needs leave for a potentially FMLA-qualifying reason,
the employer has TWO DAYS within which to designate the leave
as FMLA leave and communicate the designation to the employee.
The
designation must be communicated within two days in writing
or orally. If the communication is oral; it must be followed
up in writing no later than the end of the current payroll
period. If the current payroll period ends within one week
of the day on which oral designation occurs, the written designation
may be given no later than the end of the next payroll period.
A
failure to designate has serious consequences. In short, the
employer may not count against the 12 weeks any leave that
occurs before the official communication of the designation
of the leave as FMLA leave. For example, an employer forgets
to designate leave as FMLA leave until October 1, by which
time the employee has been out of work with a legitimate serious
health condition for six weeks already. On October 1, a human
resources staff member telephones the employee and tells her
orally that the leave is counting as FMLA leave. The human
resources staff member then follows up with a written designation
before the end of the current pay period. This employee is
entitled to 12 additional weeks after October 1, for a total
of 18 weeks.
Note
that the employee or his or her spokesperson need not specifically
mention the words "family medical leave" or the FMLA in order
to assert the employee's rights under the FMLA. The only statement
required is that leave is needed.
- Requirement
of Certification by a Health Care Provider.
The employer must inform the employee of the need to have
a health care provider fill out the certification form and
of the deadline for doing so.
- The
Employer's Policies Regarding Substituted Paid Leave and the
Right to Take Substituted Paid Leave Even When Not Required.
The employee must specify whether there are any conditions
related to such substitutions as well.
- The
Employer's Requirements with Regard to Payment of Health Care
Benefit Premiums. Employers should specify that payments
are required, how such payments may be made, and the possible
consequences of a failure to pay (i.e., that coverage will
lapse).
- Fitness-for-Duty
Certificate Requirements.
If the employer plans to require a fitness-for-duty certificate,
it must so specify when notice is given by the employee.
-
Notice of Key Employee Status.
If the employee is salaried (i.e., not paid hourly), and
in the top 10% of all. employees within 75 miles of the specific
employee's worksite in terms of rate of pay, then the employee
is a key employee. The prudent employer will always notify
such employees that they are "key employees" and of the possible
I consequences of this status for restoration to their positions
or equivalent positions at the conclusion of their leaves.
Note that at the end of the leave, it is too late. An employer
may not retroactively designate an employee as a "key employee"
in order to avoid restoration at that time.
- Right
to Restoration.
Employers must inform employees about their right to restoration
to the same or an equivalent position.
- Potential
Liability for Employer's Share of Health Benefit Premiums
If Employee Fails to Return to Work.
If the employee does not return to work, the employer
is entitled to pursue and collect the premiums that the employer
paid during FMLA leave if the employee's failure to return
to work was voluntary.
This is not the case if the failure to return to work was
the result of. circumstances beyond the employee's control,
e.g., the ongoing nature of the employee's serious
health condition, a layoff by the employer, etc.
Other
information you may wish to provide, but which is not legally
required includes:
Clarification
in writing of the current "position" of the individual
who takes leave. Be as specific as possible. If it is
known at the time the individual requests leave that his
or her job will be changing during the leave period, clarify
the nature of the changes in writing at the beginning
of the leave.
The
possibility that if the job will be eliminated during
the leave period due to reasons other than the individual's
taking leave (e.g., a reduction in force).
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- Certification
& Communicating with Health Care Providers
Requiring
certifications from health care providers is critical to the
effective enforcement of FMLA leave. Indeed, this is probably
the single most important thing employers can do to reduce the
number of unnecessary leaves of absence under the FMLA. The
Department of Labor has devised a sample form that illustrates
how much information may be requested, including the nature
of the condition of the employee or employee's family member,
whether or not it constitutes a "serious health condition,"
whether a leave of absence is necessary and if so, its probable
duration, and whether intermittent or reduced schedule leave
is necessary.
Intermittent
Leave:
One
area with a large potential for abuse is the FMLA' s provision
for "intermittent leave." As with any type of leave, the key
to preventing abuse of intermittent leave is requiring certification
of the need for it.
--Employers
are not required to allow intermittent leave for the purpose
of caring for a newborn or a newly adopted/foster child.
When the FMLA leave is due to the serious health condition
of the employee or employee's family member, however, the
employer must grant intermittent leave, as long as the
health care provider certifies the medical necessity for
such intermittent leave
--The employer may require periodic recertifications
of the medical need for intermittent leave or a reduced
leave schedule (no more often than once a month).
--The employer may temporarily transfer an employee
who needs intermittent leave to an alternative position
that better accommodates the employee's unpredictable schedule,
but may not lower the employee's pay and benefits.
Communicating
with Employee's Health Care Providers
Some employers attempt to call their employees' physicians
in a good faith attempt to get information when an employee
has not reported to work or when the employee has not complied
fully with the requirements of certification or of periodic
communication with the employer. These attempts are worrisome
because they are often interpreted by the employee as harassment
or an attempt to obtain sensitive and confidential information,
or both. Moreover, it is not in the employer's interest to
do this. It may constitute a violation of the FMLA in some
circumstances. In fact, the FMLA is specific -and strict -about
what types of communication are permitted between the employer
and the employee's health care provider.
If
the employee has submitted a filled out certification form
filled out by a health. care provider, employers may not request
additional information from the employee's health care provider.
The
employee may request clarification and authentication
from the health care provider if the form has already been
filled out, but the employee must give permission first. The
only exception is that the FMLA does specifically provide
that the employer may be in contact with the employee's health
care provider to the extent allowed by the workers' compensation
laws of the State.
Under
no circumstances should an employer contact a health care
provider if the employee has not submitted a filled out certification
form.
Seeking
Clarification:
Sometimes
health care providers return the certification forms without
providing clear information that enables the employer to make
a definite determination as to whether or not the employee
or the employee's family member has a qualifying serious health
condition. As noted above, in such cases, the employer may
not contact the health care provider directly. If the employee
gives permission, a health care provider representing
the employer may contact the employee's health care provider
for the purposes of clarification and authentication.
In
cases where the employee does not give permission, or where
the employer doubts the validity of the medical certification
(whether or not clarification was sought), the employer may
seek a second certification.
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- Using
Second and Third Opinions
As noted above, if the certification seems suspect, the employer
does not have to accept an employee's assertion- or even the health
care provider's assertion --that the employee is entitled to leave.
In some cases, entitlement is obvious, but in many cases, it is
not. Employers who require second and third certifications in
suspicious circumstances will find that the other employees become
aware that the employer takes the certification process very seriously.
In the future, employees will be less likely to attempt to take
leaves of absence that are not legitimate.
If you are not convinced, you should not hesitate to obtain a
second certification regarding whether or not an employee or the
employee's family member has a serious health condition. The standard
is whether or not the employer "has reason to doubt" the doubt
the validity" of the first certification. The employer may choose
which health care provider will give the second certification,
except that it may not be a physician employed or contracted with
on a regular basis by the employer (unless the employer is in
a rural area with very few health care providers). The employer
must pay for any visits or other costs. If the two providers disagree,
the employer and the employee must agree upon a third provider
and abide by that provider's assessment of whether the employee
or the employee's family member has a serious health condition
and how much leave is necessary .The employer must pay for the
third provider's services as well.
Note that the employee is provisionally entitled to FMLA leave
pending receipt of the second and/or third certifications.
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- Developing
Forms that Work
We
recommend using specific forms for administering any FMLA/FMLR
policy.
This
allows human resources staff ease of administration and insures
that all employees will be treated the same with regard to their
rights and responsibilities while taking leave. The following
list of recommended forms assumes that the employer is covered
by the FMLA:
Cover
memorandum for other forms.
--Acknowledge
receipt of leave request.
--Provisionally designate leave as FMLA-qualifying, pending
determination of eligibility and receipt of valid certification.
--Explain other form requirements (formal request for leave
form, certification) and attach those forms.
--Explain, in detail, the rights and responsibilities
of the employee under the FMLA. Tell the employee what the
consequences will he of not complying with the certification
requirement, and any other requirements.
--Refer to employer's FMLA policy and how to get one (or,
better yet, simply attach another copy).
Request
for leave form.
--How
much leave is requested?
--What is the reason for leave?
--If leave is to care for family member, what relation to
employee?
--If employee has choice of using up paid leave, what does
employee choose to do?
--Expected return date?
--Does employee choose to continue benefits'?
--Leave room at base of request form for employer to:
--Approve
or disapprove the leave
--Fill in how much vacation/sick time/etc. has been accrued.
--Keep track of how much FMLA time is available, how much
will be left after expected return date.
--Calculate the premium for employee benefits during leave.
--Record any other information the employer wants to communicate
to itself or the employee about his/her leave.
[Note that the U.S. Department of Labor (DOL) has developed
a sample form for the employer to use when granting or refusing
a request for leave, but has not developed a form for employees
to use when making the request. The DOL's form for granting
or refusing requests appears as Appendix D to 29 C.F .R. §
825, which you can obtain at any law library, or from your
legal counsel. Nevertheless, I recommend creating your own
form.
Health
care provider certification form.
--Date
of the commencement of the serious health condition
--Its probable duration.
--The appropriate medical facts to describe the condition
--If the employee requests leave to care for a child, parent,
or spouse, with a serious health condition, the health care
provider should certify whether or not the employee is needed
to care for that individual
--If the employee requests leave because of his or her own
serious medical condition, the health care provider should
certify whether or not employer may also require a certification
that the employee is unable to perform the functions of the
position of the employee's job.
[The DOL has provided a sample form for these purposes that
appears as.
Appendix B to 29 C.F.R. § 825. Employers may use this
form or develop one of their own.]
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- Paid
versus Unpaid Leave
As
noted above, FMLA and FMLR leaves of absence are generally unpaid.
Nevertheless, in many situations, the leave of absence will
be entirely or partially paid.
When the employer carries short-term disability coverage (STD),
the employee may qualify under the STD policy for benefits during
an FMLA/FMLR leave of absence.
Employers may require employees to use accrued paid leave
during FMLA leave, except that employers may not require employees
to use any type of accrued paid leave for any purpose that is
inconsistent with the ordinary purpose of such accrued paid
leave. For example, if under an employer's general policies,
employees are not allowed to use "sick days", to care for a
sick family member, but are required to use their' vacation
days, the employer may not require the employee
to use up accrued sick days in order to care for a child, spouse
or parent with an FMLA-qualifying serious health condition.
Those sick days will be intact when the employee returns from
FMLA leave. At the same time, when employers do not require
employees to use up accrued leave, the employee may always choose
to use up paid leave if they choose to do so.
Whether the employer requires the use of accrued paid leave
or the employee I chooses to use up such leave, it is called
"substituted paid leave." Substituted paid leave always runs
simultaneously with FMLA leave. Similarly, see Section
IV for a description of how workers' compensation leaves and
reasonable accommodation leaves may count against the FMLA 12-week
(or FMLR 10- week) maximum.
When
an employee is on substituted paid leave, his or her health benefits
should continue as always. When an employee is on unpaid leave,
in order to continue health benefits during leave, the employee
must pay the premium that is normally deducted from the paycheck.
Each employer should develop a system for employees on family
and medical leave to pay for their normal share of health benefits.
It is important to note in any employee handbooks or written family
and medical leave policies what that system will be.
During any part of FMLA leave which is substituted paid leave,
the employer may continue the practice of deducting benefit payments
from the paycheck. During the normal unpaid FMLA leave, however,
as long as they provide advance written notice to the employee,
employers may require employees to pay for their share of the
premium payments in any of the following ways:
--Payments
due at the same time as if by payroll deduction;
--Payments on the same schedule (but not necessarily the same
amount) as if made under the employer's COBRA plan;
--Prepayment pursuant to a cafeteria plan at the employee's
option;
--Payment pursuant to the employer's existing rules for payment
by employees on "leave without pay," provided that such rules
do not require (1) prepayment, (2) payment of higher premiums
than if the employee had continued to work instead of taking
leave, or (3) more of the employee taking FMLA leave than of
employees who take other forms of unpaid leave; or
--Payment according to another system voluntarily agreed to
between the employer and the employee which may include prepayment,
such as by increasing payroll deductions when FMLA leave is
foreseeable.
Except
in circumstances beyond the employee's control, if an employee
fails to return to work after taking an FMLA leave, the employer
is entitled to recover its share of the health insurance premiums
that it paid for the period of the employee's unpaid FMLA leave.
"Circumstances beyond the control" of the employee include the
continuation, recurrence, or onset of a serious health condition
of the employee or the employee's family member, which would
otherwise entitle the employee to FMLA leave, for which the
employer may require certification.
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- Choose
a "leave year" and use it consistently.
Eligible
employees are entitled to twelve weeks of family and medical leave
each year .The employer must determine what constitutes a "year"
from among the following four options:
--the
calendar year;
--any fixed, 12-month period designated as the employer's "leave
year," such, as the employer's fiscal year or a year starting
on the employee's "anniversary" date;
--the twelve-month period measured forward from the first
day of an employee's FMLA leave;
--a "rolling" twelve-month period measured backward from
the date an employee uses any FMLA leave.
Disadvantages
of using a non-fixed leave year (the second two options listed.
above) include the necessity of keeping detailed records for each
employee and contusion among both human resource personnel and
employees eligible for FMLA leave. Disadvantages of using a fixed
leave year, such as the calendar or fiscal year, include the possibility
that an employee may take up to twenty-four consecutive weeks
of leave. In other words, if the leave year begins on January
1, the employee could schedule FMLA leave for the twelve weeks
prior to January 1, using all his leave for that year, and then
schedule FMLA leave for the twelve weeks immediately following
January 1, using all his FMLA leave for the next year. In this
way, the employee would be on leave from October through the end
of March. Each employer must decide what option works best for
its operations and its employees. Again, the key to making the
policy work is choosing one option and using it consistently.
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