Under the Family and Medical Leave Act (FMLA), private employers with 50 or more employees, public agencies, and elementary and secondary schools are required to provide employees with leave of up to 12 work weeks in a 12-month period for:
- The birth of a child;
- Adoption of a child/placement of a foster child with the employee;
- To care for a parent, child or spouse with a serious medical condition;
- For a serious medical condition that renders the employee unable to perform the job; or
- For certain events concerning a spouse, child or parent who is on covered active duty or call to active duty military status.
When the employee is the spouse, child, parent or next of kin of a covered servicemember with a serious illness or injury, the leave time may be expanded to 26 weeks, and the 12-month period in question is measured differently. Thus, it is not always immediately obvious whether or not an employee is entitled to leave or how much leave is warranted.
Basic FMLA Eligibility
Under the circumstances described above, an employee of a covered employer is generally entitled to leave if:
- The employee has worked for the employer for at last 12 months;
- The employee has worked at least 1,250 hours for the employer during the 12 months leading up to the leave; and
- The employee works at a location where the employer has at least 50 employees within 75 miles.
Job Protection Under the FMLA
The core protection offered to employees under the FMLA is the right to return to the same job or an equivalent job upon termination of the leave. An equivalent job is generally one that is identical or nearly so in terms of:
- Pay
- Benefits
- Shift
- Location
- Other relevant conditions of employment
Equivalent pay includes not only base pay, but any applicable premiums, opportunity for overtime, access to unconditional pay increases and unconditional bonuses.
This may present a challenge for employers, in that the company may have been obliged to fill the employee’s role during his or her leave, making it difficult to find a new role within the company that fulfills all requirements.
Exceptions to Job Protection
There are limited circumstances under which an employee may be denied reinstatement after FMLA leave. For example, if a layoff takes place in the employee’s absence and the employer is able to demonstrate that the employee would have been included in the layoff even if he had not taken the FMLA leave, reinstatement may not be required.
In addition, the employer’s options will vary somewhat for top employees designated as “key” employees. This designation triggers notice requirements in addition to the general notice requirements set forth below.
FMLA Notice Requirements
The FMLA imposes certain affirmative duties on covered employers with regard to posting and notification of employee rights.
FMLA Posters
One key requirement is that any employer covered by the Act must display an FMLA poster making employees aware of their rights under the law. This requirement may be fulfilled by displaying a poster made available by the Wage and Hour Division of the U.S. Department of Labor, but other formats may also be acceptable.
Eligibility Notice Under FMLA
In most circumstances, an employer must provide notice of eligibility status to an employee within five days of the initial request for leave. The notice may be oral or written, and must tell the employee whether or not he or she is eligible and, if not, provide at least one reason for the ineligibility.
At the same time this notice is provided, the employer must provide a written notice of rights and responsibilities.
Designation Notice Under FMLA
Within five days of having sufficient information to make a determination as to whether leave qualifies under FMLA, the employer must provide written notice of said determination, as well as any substitution of paid leave or fitness for duty requirements. This notice must also, to the extent possible at the time of the designation, set forth the amount of leave that is designated FMLA leave.
Failure to Comply with Notice Requirements
Failure to comply with posting requirements may result in fines, and failure to provide appropriate notices may result in a wide range of consequences, from compensation for lost wages and benefits to other monetary damages and equitable relief such as reinstatement or promotion. Unfortunately, it is easy for a responsible employer with the best of intentions to run afoul of the notice requirements of the FMLA.
Employee Benefits During FMLA Leave
An employer that has granted leave under the FMLA and provided all necessary notices still has additional responsibilities. One additional requirement involves the maintenance of certain employee benefits during the leave period.
Medical Insurance During FMLA Leave
Employer-provided group health insurance coverage must be offered during FMLA leave on the same terms as during periods of active employment, meaning that the employer remains responsible for its share of premiums, for both the employee and any covered dependents. However, the employee must continue to pay his or her share. This process also imposes certain notice obligations on the employer.
Talk to an Experienced Labor and Employment Lawyer about the FMLA
Whether you, as an employer, are creating forms and procedures for FMLA compliance, making an eligibility determination, attempting to ensure that an alternative job offered will be considered “equivalent” or an employee has filed a complaint with the Wage and Hour Division, our attorneys can help.
