Who, What, Why . . .

Who does it apply to: Employers with 50 or more employees for 20 or more work weeks in the current or past calendar year must provide benefits, but only to employees: (1) with at least 1250 hours (including overtime) in the past 12 months, and (2) who work within 75 miles of a location with 50 or more employees.

What is required: If the above requirements are met, employers must allow the employee to take up to 12 weeks of unpaid leave within a 12 month period for: (1) pregnancy (including adoption or foster care); (2) caring for a spouse, child, or parent (not including in-laws) with a serious health condition; and (3) an employee’s serious health condition.

What is a “serious health condition”: It includes in-patient care (i.e. an overnight stay in a hospital) and/or “on-going treatment by a physician” for the employee or other covered person. On-going treatment by a physician can be for:

• A period of incapacity involving inability to work, attend school, or perform daily activities for more than 3 days;

• Health care related to pregnancy;

• Incapacity for serious health condition;

• Permanent or long-term incapacitation for chronic serious health condition; and

• Absence to receive multiple treatment for condition that would likely result incapacitation for 3 days.

Can I require the employee to prove the need for leave: Yes, you may require the employee to provide a medical certification from a physician. The employee must then deliver certification within 2 days. You can request a second opinion only if you have a reason to doubt the validity of the certification. Once leave begins you may require an additional certification every 30 days.

Are there records I must keep regarding leave: Yes, you must retain records on the dates and times leave is taken, any medical certifications, or notices to or from the employee regarding leave, and all payroll data regarding the leave period.

When can leave be taken: Leave should be taken all at once or in large blocks, except in the case of a serious health condition when leave may be taken intermittently. Where the need for leave is foreseeable, the employee is required to give 30 days’ notice.

Is the leave paid: Employers are not required to pay during the leave, but an employer can require the employee to use sick days during the period. The employer must maintain health insurance benefits for the employee while out, however, the employee is still responsible for their portion of any premium while on leave.

Do I have to keep the position open: No, but as a practical matter, you should. The employee must be given a position that offers the same money, same level of authority, and level of responsibility. The only time changing the employee’s position is viable is in the case of a serious health condition that requires intermittent leave from a position that won’t accommodate it.

What are the consequences of failing to comply: Within two years of the incident, the employee can sue in federal court or report the issue to the Department of Labor which may investigate on its own. Damages to the employee include not just the lost wages or benefits, but also attorneys’ fees, expenses, and an extra amount equal to their economic damages as a penalty.

What do I do if I feel the employee is trying to abuse the system: Don’t take matters into your own hands. Contact your lawyer. The consequences of a violation can be severe and the minute details of the law are beyond the scope of this guide. You may have rights, but you should have input from someone qualified to assist you.

Common Situations:

Adoption: A female employee informs you that she and her husband are adopting a child from a foreign country. The employee gives 15 days notice. Unless the employee can explain that the need to leave within 15 days was unforeseeable, you may delay the leave until the 30 day notice period has passed. That said, employers should give employees the benefit of the doubt as to the foreseeablilty of the need for leave.

Key Employee Leave: Your small company’s CFO plans to take 12 weeks leave when his wife gives birth to their first child. While you wholeheartedly support his family commitment, the company will not be able to survive without a replacement if the CFO is gone that long because you as the owner must travel to China to meet with manufacturers. If the CFO’s absence will cause the company “substantial and grievous economic injury” you may terminate the CFO instead of holding his position open. Before utilizing this option, however, please consult with counsel.

Care of Adult Child: An employee reports that she needs to take leave to care for her college age child who has been in a serious automobile accident. While the FLMA provides for care of a child with a serious health condition, for children over 18, you are only required to allow leave if the child is incapable of caring for himself in three or more daily living activities due to a mental or physical disability.

What should I do:

Good: Maintain all of the notices required by the U.S. Department of Labor. You can find an “all-in-one” poster at most office supply stores. Grant leave where appropriate and consult counsel in any event you plan to deny or delay leave.

Better: Maintain required notices and consult counsel where appropriate. Maintain a posted policy of the person to whom employees should report the need for leave so that requests for leave are not made to supervisors or other employees who are not trained to know the importance of a request.

Best: In addition to the suggestions above, maintain an employee handbook which sets out the company’s plan for leave, including: (1) whether leave is paid in part or in full, (2) whether employees are required to use sick days during FMLA leave; (3) providing a form of request for leave; (4) explaining the requirement of 30 days notice where the need for leave is foreseeable; and (5) designating a particular person within the organization for employees to make requests to.