FMLA issues are complex and difficult for employers and employees alike. What do you do when an employee misses work for 40 minutes during the middle of almost every day in order to pick up kids from school? What do you do when an employee advises they will miss 14 days of work due to entering a drug treatment program? What do you do when an employee leaves work for a few hours once or twice a month because debilitating headaches?
Many employers might be tempted to terminate these employees. However, an employer may put itself at risk of liability under the Family Medical Leave Act (FMLA) by terminating these employees.
The FMLA entitles eligible employees of certain employers to take unpaid leave for specific family and medical reasons. Whether the FMLA applies depends on consideration of four questions: 1) Is the employer covered? 2) Is the employee qualified? 3) Is the reason for the absence proper? and 4) Have the right procedures been followed?
As to the first factor, the FMLA only applies to public employers, school districts and private sector employers that have 50 or more employees in 20 or more work weeks during the current or preceding calendar year. Consequently, most small private employers may not have to grant an employees unpaid medical leave.
Second, the employee must be qualified under the Act. To be covered, employees must have worked for the employer for at least 12 months. The employee must also have worked at least 1,250 work hours during the prior 12 months. And the employee must work at a site where the employer employs at least 50 employees within a 75 mile radius.
Third, the reason for the leave must also qualify. A qualified employee working for a covered employer may take leave due to a serious health condition. An employee may also take unpaid leave in order to care for a newborn, a newly adopted child, a foster child, a spouse, son, daughter or parent with a serious health condition, or the need to deal with qualifying exigencies arising out of a military assignment of a family member.
It should be noted that not all medical conditions are sufficiently seriousto qualify under the FMLA. Typically, a serious medical condition is one that requires inpatient care or continuing treatment by a healthcare professional. However, a condition need not result in extended incapacity or disability in order to be a serious medical condition if the failure to treat the condition, would result in incapacity.
Finally, in order to be covered under the FMLA, an employee must give their employer timely notice of the need for leave. Whenever possible, the employee must give at least 30 days advance notice. There are some circumstances the employer is required to inform an employee of their FMLA rights. For example, if an employer learns that an employee has missed work because of a qualifying, serious medical condition, the company may be required to supply that employee with written notice of their FMLA rights.
Most employees are limited to 12 weeks leave during a 12 month period, although employees caring for a wounded veteran may take 26 weeks leave. The dates of the relevant 12 month period depend upon the calculation method chosen and disclosed by the employer. A company that fails to identify and disclose a 12 month allotment cycle would be required to employ the calculation methodology which most favors the employee. As a result, if an employer is not careful, they may be required to provide employees more than 12 weeksworth of leave.
FMLA compliance is imperative. Employers that improperly terminate employees taking leave may face substantial civil liability. Similarly, if an employee is denied medical leave, they need to be certain to satisfy all of their duties under FMLA. A two year statute of limitations usually applies to FMLA suits.
While the Department of Labor provides substantial compliance guidelines, covered employers and affected employees should confer with qualified counsel in order to ensure that they are complying with the FMLAs many requirements.
Patrick Kelly is an attorney with Glenn Feldmann Darby & Goodlatte visit www.gfdg.com to learn more.