In last month’s column, we discussed various laws that concerned employee rights and health. Brief descriptions were given of the functions served by workers’ compensation, disability, the Americans with Disabilities Act, the Affordable Care Act (Obamacare) and the Family and Medical Leave Act. In this month’s column, we are going to focus on the requirements of this last statute, the Family and Medical Leave Act (FMLA).

The FMLA is a federal law that was enacted by Congress in 1993 to give eligible employees the opportunity to take unpaid leaves of absence of up to 12 weeks to deal with personal or family medical issues. Further, the statute requires employers to give their employees notice of their FMLA rights.

In order to be eligible, an employee must have worked for the company for at least 12 months, worked at least 1,250 hours in the previous year and worked at a work site where the company had at least 50 employees within a 75-mile radius.

If the employee satisfies all of these requirements, the statute requires employers to grant a leave of absence for the following:
•    To care for the employee’s own serious health condition;
•    To care for the employee’s spouse, child or parent with a serious health condition;
•    The birth of an employee’s baby or care of a newborn; or
•    The adoption of a child or receiving a child through foster care.

The employee is required to give 30 days advance notice of their intention to take an FMLA leave, if such advance notice is possible. The request must be in writing. If leave is requested on an emergency basis, the employee should give as much advance notice as possible. The employer is entitled to request verification of a serious medical condition from the employee’s healthcare provider.

The leave may be taken for as long as the circumstances permit, up to a maximum of 12 weeks. Leaves can be taken in blocks of time — as long as months, or as short as several hours per day. Employees are entitled to take up to the maximum amount of leave annually. A “year” is interpreted to mean on a rolling 12-month basis.

FMLA leave is unpaid. The company, however, must maintain the employee’s health insurance on the same basis as received before the leave. A company has the option of requiring an employee to exhaust all paid time off benefits (vacation, personal days, sick days) before starting FMLA leave.

Upon completion of the leave, the employee is entitled to reinstatement to the same or comparable job with no reduction of pay or benefits. If the employee fails to return from leave, the company is entitled to reimbursement for any money paid out for the employee’s medical benefits. An employer is under no obligation to hold a job for an employee who overstays an FMLA leave.

This is, of course, a very brief description of a very technical statute. And, as in many complicated laws, the “devil is in the details.” If requirements (for example, notice to the employees of their FMLA rights) are not followed precisely, time taken by the employee might not be counted against their FMLA entitlement.

To make matters even more complex, a number of states have their own leave statutes that apply to private sector employers. These statutes are often designed to cover employers that are not large enough to fall under the federal statute and can differ considerably in their details. For that reason, employers need to consult with an employment lawyer or human resources professional when dealing with these laws.

Perry Heidecker is senior counsel for Milman Labuda Law Group PLLC, Lake Success, N.Y. The firm is a full-service Employment Law practice focused on counseling, preventive advice and training, policy and procedure design, representation before administrative agencies, litigation, and appeals.





POSTED ON: 5/30/2014