Family and Medical Leave Act Sample

Family and Medical Leave Act (FMLA) cover all federal, state, and private employers with 50 or more employees who live within 75 miles of workplace (Mathis, 2006). According to Mathis (2006), only employees who have worked at least12 months and 1250 hours in the previous years are eligible for leaves under the FMLA. The law requires that employers allow eligible employees to take a total of 12 month period for one or more of the threes situations.

Those situations are: birth, adoption, or foster care placement of a child; caring for a spouse, a child, or a parent with a serious health condition; and serious health condition of the employee. Based on Mathis (2006), a serious health conition is one requiring in-patient, hospital, hospice, or residential medical care for continuing physician care. An employer may require an employee to provide a certificate from a doctor verifying such an illness. The FMLA provides a number of guidelines regarding employee leaves.

As Mathis (2006) cited, the guidelines are as follows: employees taking family and medical leave must be able to return to the same job of equivalent status or pay; health benefits must be continued during the leave at the same level and conditions – if, for a reason other than serious health problems, the employee does not return to work, the employer may collect the employer-paid portion of the premiums from the non-returning employee; the leave may be taken intermittently rather than in one block, subject to employee and employee agreements, when birth adoption, or foster child care is the cause, for serious health conditions, employer approval is not necessary; employees can be required to use all paid-up vacation an personal leave before taking unpaid leave; and, employees are required to give 30-day notice, where practical. Literature Review The Family Medical Leave a Act of 1993 represents one of the pieces of legislation passed by the Clinton administration.

The FMLA pertains to employers with 50 or more employees, although legislation was introduced in June 1996 by Rep. Patricia Schroeder to expand the coverage to employers with 25 or more employees (Miller, 1997). According to Miller (1997), as defined by the law, all eligible employees must be given 12 weeks of unpaid leave for individual reasons; birth or adoption of a child; or the care of the child, spouse or parent with a serious condition. Employee benefits must remain throughout the entire leave. Based on Miller (1997), the caveat is that the employer, after the 12 weeks has expired, must re-employ the individual in the same or similar position with equivalent pay, benefits, and other terms and conditions of employment.

Exemptions are only allowed if the employer is able to show that the employee’s absence would result in a substantial economic hardship in the business. In addition, the employer may prohibit the leave if the employee ranks in the top 10% of the highest paid employees. Advocates of the law view it as a reflection of the changing demographics and family structure. According to Miller (1997), the act excludes a “pro-family’ sentiment, enabling employees with dual responsibilities to fulfill family obligations and demands better and in a more friendly environment. According to Miller (1997), critics of the law view the FMLA as another form of government intrusion into business operations, resulting in economic hardship.

For example, sports businesses must incur costs (recruiting, hiring, training, or job reallocation expenses) of finding a replacement during the employee’s absence. Further, business may flow may become interrupted as suppliers and buyers accustomed to doing business with a particular employee now on leave, contemplate their own expense of learning to do business with another employee. According to Miller (1997), sports businesses incur additional cost of reorienting the employee to current upon his or her return. The cost of administration is overtly burdensome, argue employers, for a piece of legislation that is used by only 5% of all eligible employees.

Miller added that, employees may bring civil actions against employers alleging violation of the law for a period of 2 years after the date of the last event constituting the alleged violation. President Clinton, proposed an extension of the FMLA to make the workplace more family friendly in June 1996, and as reported in the Wall Street Journal, President Clinton advocates legislation requiring employers to provide all employees with a 24 hour unpaid hours per year to handle such obligations as taking an elderly parent to a doctor’s appointment or meeting with a child’s teacher (Miller, 1997). The FMLA Since its enactment on February 5, 1993, it is estimated that anywhere from 12 million to 20 million workers has taken leave under the Family and Medical Leave Act.

The FMLA currently extends to an estimated 80 million workers, about 70% of the nations workforce (Ford et. al, 2000). President Clinton asked the American people to extend the FMLA to cover 10 million more workers by broadening the coverage to include employers of 25 or more workers and by providing leave to parents school related purposes and doctor’s visit for their children (Ford et. al. , 1997). Although the Clinton administration touts the FMLA as one of the easiest laws to administers of all the laws’ that the Department of Labor has responsibility for implementing, many employers faced with applying the FMLA on a daily basis have found it to be an administrative nightmare (Ford et. al, 2007). According to Ford et.

al (1997), employers are finding it difficult to understand, much less abide, all of the FMLA’s requirements. While court interpretations of the FMLA and the regulations implementing the FMLA should help guide employers, these disputes are only now reaching the courts; further, most cases, courts themselves offer varying and sometimes conflicting interpretations of the regulations. Based on Ford et. al (1997), however by teaching them the limits of the FMLA employers will help ensure conformity with the law. Employers who become familiar with the applicable eligibility requirements, notice requirements, and reinstatement policies can minimize the disruption to their workplaces caused by family and medical leave (Ford et. al, 1997).

The stated purpose of the FMLA is “to balance the demands of the workplace with the needs of families and to promote national interests in preserving family integrity” (qtd. in Ford et. al, 1997). To this end, the FMLA provides eligible employees with the right to unpaid leave of absence to bond with a new child, to care for a family member with a serious health condition. Following the passage of the FMLA, the Department of Labor spent almost two years drafting regulations implementing the FMLA. According to Ford et. al, (1997), the regulations became effective in April 1995; they are quite detailed and voluminous, making day-to-day application of the FMLA confusing and burdensome to employees.

The FMLA became effective on August 5, 1993 for all covered employers who did not have a collective bargaining agreement in effect on that date. For employers subject to a collective bargaining agreement, the FMLA became effective on the date of the collective bargaining agreement’s termination or February 5, 1994, whichever was earlier. The Department of Labor’s implementing regulations became effective April 6, 1995, and are codified in the Code of Federal Regulations. Eligible Employees The FMLA follows the principle established by the Fair Labor Standards Act (FLSA) for determining whether the employee has 1250 hours of service. This determination is made by an accurate accounting of actual hours worked under the FLSA principles.

Employees who are exempt from the FLSA’s requirement that a record be kept of their hours, and who have worked for the employer or at least 12 months, will deemed to have worked at least 1250 hours during the previous 12 months unless the employer can prove otherwise. Full-time teachers of an elementary or secondary school system of higher education will also be deemed to meet the 1250 hour test (Ford et. al, 1997). By definition, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves: inpatient care in hospital, hospice, or residential medical care facility; o continuing treatment by a health care provider. According to Ford et.

al (1997), a serious health condition involving continuing treatment by a health care provider is defined by the FMLA regulations as including one or more of the following: a period of incapacity of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves treatment two or more times by a health care provider, or a treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the healthcare provider; any period of incapacity due pregnancy or prenatal care; any period of incapacity or treatment or such incapacity due to chronic serious health condition; a period of incapacity that is permanent or long term due to a condition for which treatment may not be effective such as in severe stroke or Alzheimer’s disease; and any period of absence to receive multiple treatments by a healthcare provider, 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 treatment. Periods of Incapacity

In order for an employee to satisfy the period of incapacity requirement, the employee must demonstrate that he or she was incapacitated, that is, was required to remain of work. To prove that he or she was required to miss work for more than three days, an employee must show that he or she was prevented from working because of the injury or illness based on a medical provider’s assessment of the claimed condition. This does not mean that, in the employee’s own judgment, he or she should not work, or even if it was uncomfortable or inconvenient for the employee to have worked; rather, it means that a healthcare provider has determined that, in his or her professional medical judgment, the employee cannot work because of the illness. Pregnancy

The FMLA recognizes pregnancy as a special case that is treated differently from other serious conditions; for example, the FMLA’s implementing regulations expressly provides that certain pregnancy-related conditions, “specifically including those pregnant employee unable to report to work because of severe morning sickness qualify for the FMLA leave even though the employee does no receive treatment from the healthcare provider during the absence, and even if the absence does not last more than three days (Ford et. al, 1997). Health Provider’s Certification When leave is taken for medical reasons, an employer may require a certification from the healthcare provider of the person requiring the care, whether it be the employee or the employee’s spouse, child, or parent.

Employers may request certification of the following: that the employee or the family member has a serious health condition; the date on which the serious condition commenced; the probable duration of the condition; a statement that eligible employee is needed to care for the spouse, child, or parent, and an estimate of the amount of time that the employee is needed to care or the spouse, child, or parent; or a statement that the employee is unable to perform the functions of his position. Leave Available Eligible employees are entitled to up to a total of 12 workweeks of the FMLA leave per 12 month period. According to Ford et. al (1997), leave due to birth of a child or placement of a child with the employee for adoption or foster care must be concluded prior to the end of the 12-month period after the birth or placement unless state laws requires, or employer permits leave to be taken for a longer period.

Additionally, if a husband and a wife are employed by the same employer, the aggregate leave to which both are entitled may be limited to 12 work weeks in any 12 month period if the leave is taken due to the birth or placement of a child with the employee or to care for parent with a serious health condition. Employee Notice and Request for Leave Requirements According to Ford et. al (1997), an employee requesting leave need not expressly assert rights under the FMLA or even mention the FMLA in order to be eligible for such leave. An employee is obligated to provide only enough information for the employer to be able to determine that the employee’s need for the off qualifies as FMLA leave. Designation of Leave and Notice to Employee

It is the employer’s responsibility to designate leave, paid or unpaid, as the FMLA-qualifying. Based on Ford et. al (1997), the employer must give notice of the designation of the employee within two business days from the time the employee gives notice of the need for the leave, or where the employer does not initially have sufficient information to make a determination, notice must be given within two business days from the time the employer determines that the leave qualifies as FMLA leave; although oral notice is sufficient to comply with the 2 business day agreement it must be confirmed in writing no late than the following payday (Ford et.

al, 1997). Compensation during Leave FMLA leave is unpaid; however, eligible employee may elect, or an employer may require, the substitution of any accrued paid vacation leave, personal leave, or family leave for any part of the 12 workweek period of leave due to the birth or placement of a child or to care for the employee’s child, spouse, or parent who has a serious health condition. Based on Ford et. al (1997), the paid leave and the FMLA can be charged concurrently; an employer may not unilaterally substitute an employee’s accrued paid vacation for any part of the employee’s FMLA leave without giving the employee notice of this substitution

An employer can also force an employee to substitute accrued sick leave or any part of the 12 work week period if the employee is out due to his own serious health condition. If the employee is out to care for a spouse, child, or parent with a serious health condition, sick leave can only be substituted unless the employer allows employees to take sick leave for ill spouses, children, and parents. Salary Pay Obligations An overtime-exempt employee must be paid his or her full salary for any week in which the employee performs any work; the salary can be reduced or complete days of absence due to illness or personal reasons; however, private employers cannot reduce an exempt employee’s pay for a partial day of absence (Ford et.

al, 1997). A special rule allows an employer to make otherwise impermissible deductions for partial days of absence if the absence qualifies as FMLA leave; however such deductions can only be made if an employer is obligated to grant FMLA leave. Benefits Perhaps the greatest impacts of the FMLA relates to health benefits (Ford et. al, 1997). According tom Ford et. al (1997), during any period when an eligible employee takes leave, the employer is required to maintain coverage under any group health plan for the duration of the leave at the level and under the conditions that the coverage would have provided if the employee had not taken leave.

The employer must continue to pay premiums as though the employee had continued working. Employees are entitled to any new health plans or benefits or changes in health benefits that occur during an FMLA leave. Ford et. al added that, notice of any opportunity to change plans or benefits must be given to employees on FMLA leave, additionally, if an employee chooses not to retain health coverage during FMLA leave, benefits must be resumed in the same manner and at the same level as provided when then leave began, without any qualifying period, physical examination, exclusion of pre-existing conditions, and the like, immediately upon the employee’s return to work. Nondiscrimination Obligations

Employees may not interfere with, restrain, or deny the right for the employees to exercise or attempt to exercise any rights provided by the FMLA; employees may not discriminate against or discharge any individual for opposing any practice that is made unlawful by the FMLA (Ford et. al, 1997). It is unlawful to discharge or otherwise discriminate against an individual for instituting proceedings, giving any information, or testifying with regard to any inquiry or proceeding related to any right provided by the FMLA. Enforcement Individuals may seek enforcement of the FMLA by filing complaint with the Department of Labor or by filing a private civil action in the appropriate court. Violators of the FMLA may be liable to damages equal to the amount of any wages, benefits, or other compensation denied or lost (Ford et. al, 1997).

In any case where wages, salary, employment benefits, or other compensation have not been denied, an employee may recover an actual monetary loss sustained as a direct result of the employer’s violation, such as the cost of providing care, up to a sum equal to 12 work weeks of wages or salary for the employee. Supervisors may also be subject to individual liability for FMLA violations. The regulations state that under the FLSA, individuals such as corporate officers acting in the interest of the employer are individually liable for any violations of the requirements of the FMLA. Employer Notice Requirements If an employer gives written guidance to employees concerning employee benefits or leave rights in an employee handbook, then the handbook must be clearly incorporate information on FMLA rights and the responsibilities and the employer’s policies regarding the FMLA. According to Ford et.

al (1997), if an employer does not have such written policies, the employer must provide written guidance to an employer concerning all of the employee’s rights and obligations under the FMLA whenever an employee requests FMLA-qualifying leave. Recordkeeping An employer must make and preserve records concerning compliance with the FMLA; for example, employers should preserve payroll records for at least three years from the last date of entry. If requested by the secretary of Labor, an employer must submit books and records no more than once during a 12 month period, unless the secretary reasonably believes that there may be an FMLA violation. An employer may be entitled to demand a subpoena before it is obligated to provide records to the secretary. According to Ford et.

al (1997), the regulations require employers to keep the following records: basic payroll and any identifying data including rate or basis of pay in terms of compensation, daily and weekly hours worked per pa period, and additions to or deductions from wages; dates FMLA leave is taken by the employee; if leave is taken in increment of less than one full day, the hours of leave; copies of the employees notices of leave furnished to the employer under the FMLA and the copies of notices given to employees by the employer; documents describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leave; premium payments of employee benefits; and records of any dispute between the employer and the employee regarding designation of leave as FMLA leave. Impact of Collective Bargaining Agreements.

The regulation interpreting the FMLA provide that employees cannot waive their rights under the FMLA; for example, employees or their collective bargaining representatives cannot trade off the right to take FMLA leave against some other benefits offered by the employer; additionally, provisions of collective bargaining agreement that, for example, provide reinstatement to a position that is not equivalent to the employee’s prior position are superseded by the FMLA (Ford et. al, 1997).

Also, an employer must observe any employment benefits program or plan that provides greater family and medical leave rights to employees than the rights established by the FMLA; thus, employers must review the terms of any applicable collective bargaining agreement and administer leave policies in accordance with agreement and the FMLA References Cournoyer, N. G. , Marshall, A. G. & Morris, K. (1998). Hotel Restaurant and Travel Law. New York: Thomson Delmar Publsihing. Faillace, M. (2000). Disability Law Deskbook: The Americans with Disabilities Act in the Workplace. New York: Pactising Law Institute. Ford, K. E. , Notestine, K. E. & Hill, R. N. (2000).

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