FMLA: What to Know BEFORE it Happens

by Nancy Owen, PHR

The Family Medical Leave Act (FMLA) is a federal law that provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to 12 or 26 workweeks of leave in a 12-month period for eligible reasons.

In addition to providing eligible employees an entitlement to leave, the FMLA requires that employers maintain employees’ health benefits during leave and restore employees to their same or an equivalent job after they return from the leave.

What is the big risk?  Over time organizations have been challenged in ensuring that their employees are treated fairly when it comes to the FMLA. The task can be daunting for employers because they have to comply with the law which has many moving pieces. Employers with leave processes that are not compliant expose the company to enormous risks and potential expense. Employees have two years to file a claim against an employer for a FMLA violation. If they win their case, the employee may be entitled to lost back pay, lost front pay, liquidated damages, punitive damages, and attorneys’ fees and costs. As you can imagine, this can quickly add up to hundreds of thousands of dollars.

Understanding what the FMLA requirements are and determining the risks to your organization are necessary when deciding who will be your administrator. Do you outsource the administration of your FMLA or do you process it in-house? This decision can be a critical one to lower your risk of a claim. You need to guarantee your workforce the ability to safeguard their jobs and give them the peace of mind that they can care for their family issues. It will benefit all of the employees in your organization.

Let’s look at the requirements:

On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) issued what is referred to as the Enforcement Guidance on Retaliation and Related Issues document. This Enforcement Guidance replaces the EEOC’s Compliance Manual Section 8: Retaliation, issued in 1998. Since that time, the Supreme Court and the lower courts have issued numerous significant rulings regarding employment-related retaliation. The percentage of EEOC private sector and state and local government charges alleging retaliation has essentially doubled since 1998. That means that retaliation is now the most frequently alleged basis of discrimination in all sectors, including the federal government workforce.

Each of the Equal Employment Opportunity laws clearly prohibit retaliation and related conduct when it comes to FMLA, Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disability Act (ADA), Section 501 of the Rehabilitation Act, The Equal Pay Act (EPA) and finally Title ii of the Genetic Information Nondiscrimination Act (GINA).

According to the Department of Labor’s (DOL) Wage and Hour Division, “Since its existence in 1993, FMLA has served as the cornerstone of the Department of Labor’s efforts to promote work-life balance and we have worked in support of the principle that no worker should have to choose between the jobs they need and the family they love. With the FMLA, our country made it a priority to give workers the ability to balance the demands of work and family. It made the healthy development of babies, healthy families, and healthy workplaces a priority. It was a remarkable accomplishment at the time and, since its enactment, the FMLA has been used more than 100 million times to help workers balance the demands of the workplace with the needs of their families and their own health.”

The law protects employees from interference and retaliation for exercising or attempting to exercise their FMLA rights. The law also includes certain employer recordkeeping requirements.

Here are some examples of what would constitute interference or denying rights:

  • Refusing to authorize FMLA leave, or discouraging an employee from using such leave.
  • Transferring employees from one work site to another to keep a work site below the 50-employee head count.
  • Changing the essential functions of a job before an employee takes leave, or
  • Manipulating an employee’s work hours or schedule to avoid the employee’s eligibility under the FMLA.
  • Counting FMLA leave under a regular attendance policy, or
  • Failing to provide benefits to an employee on unpaid FMLA leave if the employer provides those benefits to employees who use other types of unpaid leave.
  • Not counting temporary or part-time employees in the 50 or more headcount calculation.

Who is a covered employer? Covered employers include private employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year. For the purposes of FMLA, that count must include staffed or shared employees (more on integrated and joint employers in a bit). FMLA also covers public agencies and public or private elementary or secondary schools, regardless of the number of employees.

Let’s take a minute to look a little more closely at the requirements for private employers. Once a private employer meets the requirement for FMLA coverage, the employer is a covered employer and will remain covered as long as it employs 50 or more employees in 20 or more workweeks in either the current calendar year or in the previous calendar year.

For example, last year during its busy season from June 1st to October 31st, a restaurant had more than 50 employees on their payroll. In the current year, the same restaurant employs fewer than 50 employees and an employee has requested FMLA leave. Because the restaurant employed more than 50 employees for more than 20 workweeks in the previous year, the restaurant is considered to be covered at the time of the request and must offer the FMLA benefits and protections to its eligible employees. This count included full-time, part-time, and temporary employees.

Another thing that you want to consider is if you are an Integrated or Joint employer. For the purposes of FMLA coverage, determining if you are an integrated employer is not a simple test. Basically, an integrated employer is a single employer that has separate entities or divisions. Factors to be considered in determining if separate businesses are an integrated employer include:

  • Common management,
  • Interrelation between operations,
  • Centralized control of labor relations, and/or
  • Degree of common ownership or financial control.

For purposes of determining employer coverage under the FMLA, the employees of all entities making up the integrated employer must be counted.

Employers may also qualify as a Joint Employer if two or more businesses exercise some control over the work or working conditions of an employee, such as with a temporary employment agency. For purposes of determining employer coverage under the FMLA, employees jointly employed by two employers must be counted by both employers, even if the employees are maintained on only one of the employer’s payrolls. Two (or more) businesses may simultaneously employ an employee, making them joint employers of the employee. For example, joint employment ordinarily will exist when a temporary employment agency supplies employees to a second employer. In that case, the employee must be counted by both employers when determining FMLA coverage.

Here are some facts you may find helpful:

Did you know that . . .
Employers who willfully violate FMLA’s posting requirement may be assessed a civil money penalty for each separate offense. Employers may download the DOL’s FMLA Poster for no charge by visiting the DOL’s website.

Did you know that . . .
An employee is eligible for FMLA if they have worked for a covered employer for at least 12 months (these do not have to be consecutive) and have worked 1250 hours in the 12 months leading up to the FMLA leave. In addition, they must work at a work site that employs 50 or more employees within a 75-mile radius.

Did you know that . . .
Covered employers who employ FMLA-eligible employees must maintain records that include the following:

  • Payroll employee data that includes the employee’s name, address, and occupation
  • Your employee’s rate of pay and terms of compensation,
  • The hours your employees work on a daily and weekly basis for each pay period
  • Additions to and deductions from wages, and total compensation paid.
  • The dates that the FMLA leave is taken
  • The hours of FMLA leave that is taken by your employee including hours taken in increments of less than a day,
  • All copies of FMLA notices that are provided by an employee to the employer and by the employer to its employees regarding FMLA (including any written request for leave from the employee)
  • Documents that include electronic records, describing your employees benefits or employer policies and practices regarding the taking of paid or unpaid leave as well as premiums paid

In addition, keep all documents regarding any disputes between the employer and an employee regarding the designation of leave as FMLA leave, such as emails or other written statements.

Did you know that . . .
As soon as an employer has enough information that indicates an employee may have a qualifying reason to take FMLA leave, the employer should initiate the FMLA leave process.  It is extremely important that the leadership team as well as the administrators play a vital role in ensuring FMLA compliance is met. This team must be able to recognize FMLA-qualifying reasons for leave as well proper initiation of the required notifications and eligibility requirements to satisfy the law. Providing FMLA training regularly helps to make sure those responsible for implementing the FMLA are up-to-date on the requirements of the law and the employer’s policy, procedures and practices. Making sure your leaders are in the know will help you stay in compliance and lower your organization’s risk.

Did you know that . . .
An employer could be exposing itself to risk and liability by failing to make a timely determination of eligibility or failing to provide notice to employees within the required time frame. Failure to timely notify employees of their eligibility status may constitute interference with, restraint, or denial of the exercise of an employee’s FMLA rights.

Did you know that . . .
The right to take FMLA leave applies equally to all employees regardless of their gender. For example: fathers are equally entitled to take up to 12 workweeks of FMLA leave for the birth or placement for adoption or foster care of a child and to bond with the child within 12-months from the date of birth or placement.

Did you know that . . .
Employers may not request a certification for leave to bond with a healthy newborn child or a child placed for adoption or foster care. However, employers may request documentation to confirm the family relationship such as a written confirmation or the birth certificate of the child.

Did you know that . . .
After receiving sufficient certification, an employer is not permitted to ask for more information, such as requiring a doctor’s note for each absence associated with that already-approved leave. Such a requirement may be considered interference with the employee’s use of FMLA leave.

Did you know that . . .
FMLA leave and workers’ compensation or short-term or long-term disability can run concurrently, provided the reason for the absence is due to an FMLA-qualifying serious health condition and the employer properly notified the employee that the leave would be counted as FMLA leave. Also worth noting, even though most state’s laws do not require an employer to continue an employee’s benefits while receiving workers’ compensation benefits, as long as workers’ compensation is running concurrently with FMLA, the employer is required to continue to provide benefits at the same level prior to leave.

Did you know that . . .
Separate from the employer’s ability to request that the employee provide a fitness-for-duty certification, employers may also require an employee to submit to an examination at the employer’s expense by the employer’s medical staff provided the examination by the employer’s medical staff is job-related and consistent with business necessity. An employer may not deny or delay reinstating an employee who has been absent on FMLA leave pending an examination by the employer’s medical staff. The employer may require the employee to submit to examination after reinstatement, including the first day of the employee’s reinstatement.

With so many moving parts, FMLA compliance is no simple task. Be sure you have a clear understanding of what is involved. Does your FMLA administrator have the knowledge, resources and time needed to properly administer, track and follow-up with FMLA leaves? If not, outsourcing this task may be the best way to lower your risk of a FMLA claim.

If you have any questions about East Coast Risk Management and the services we offer, please explore our website (www.eastcoastriskmanagement.com) or call (724) 864-8745.

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