Practice Makes Perfect-Personnel Issues In The Office Family And Medical Leave Act Of 1993

BACKGROUND

The Family and Medical Leave Act of 1993("FMLA" or the "ACT") Public Law 103-3(107 Stat. 6; February 5, 1993), (29 U.S.C., § 2601 et seq.) became effective August 5, 1993. On January 6, 1995, the Wage and Hour Division of the U.S. Department of Labor published the final rule implementing the Family and Medical Leave Act. These regulations are contained at 29 C.F.R. Part 825, and will be cited by the section number only.

Under the FMLA, employers with 50 or more employees are required to provided 12 weeks of unpaid leave to eligible employees for the birth, adoption, or placement of a child; the serious medical condition of a spouse, child or parent of the employee; or for the employee's own serious health condition which keeps him or her from performing the functions of the job. The FMLA was passed in response to the needs of an increasing number of two-wage-earner families, protecting them from having to make a choice between keeping their job and caring for family members.

PURPOSE

The purpose of this Act is:

1. to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity;
2. to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition;
3. to accomplish the purpose described in paragraphs (1) and (2) in a manner that, accommodates the legitimate interests of employers;
4. to accomplish the purpose described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and
5. to promote the goal of equal employment opportunity for women and men, pursuant to such clause.

EMPLOYER COVERAGE

FMLA applies to employers who employ 50 or more employees for each working day during each 20 or more calendar work weeks in the current or preceding calendar year and/or whose employees are working at a worksite within a 75-mile radius of worksites employing at least 50 employees of the employer.

ELIGIBLE EMPLOYEES [§ 825.800]

Under the FMLA, eligible employee means:

1. An employee who has been employed for a total of at least 12 months by the employer on the date on which any FMLA leave is to commence; and
2. Who, on the date on which any FMLA leave is to commence, has been employed for at least 1,250 hours of service with such employer during the previous 12-month; and
3. Excludes any Federal officer or employee covered under subchapter V of Chapter 63 of Title 5, United States Code; and
4. Excludes any employee of the U.S. Senate of the U.S. House of Representatives covered under Title V of the FMLA; and
5. Excludes any employee who is employed at a worksite at which they employ fewer than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is also fewer than 50. This will remove the eligibility of many law firm employees employed at a firm's branch office or locations other than the firm's headquarters.

Employee eligibility for FMLA must be determined as of the date leave is to begin even though employer coverage is determined as of date leave is requested. [§825.110(d)]

LEAVE ENTITLEMENT

Under the Act, an employee is entitled to a total of 12 administrative workweeks of unpaid leave during any 12 month period for one or more of the following reasons:

1. The birth of a son or daughter of the employee and to care for such son or daughter;
2. The placement of a son or daughter with the employee for adoption or foster care;
3. The care of a spouse*, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition; or
4. An employee's own serious health condition that makes the employee unable to perform the functions of his or her position.

* NOTE: A spouse does not include unmarried domestic partners.[§825.113(a)] and the FMLA does not authorize leave to care for parent-in-law. [§825.113(b)]

"Married Employee" Exception: If both spouses are working for the same employer their total leave in any 12 month period may be limited to an aggregate of 12 weeks if the leave is taken for either a birth or adoption of a child or to care for a sick parent.

SERIOUS HEALTH CONDITION [§ 825.800]

Under the FMLA, serious health condition means an illness, injury, impairment, or physical or mental condition that involves;

1. Any period of incapacity or treatment in connection with or consequent to inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical facility;
2. Any period of incapacity requiring an absence from work, school or other regular daily activity of more that three calendar days and that also involves continuing treatment by ( or under the supervision of) health care provider;
3. Continuing treatment by a health care provider for a chronic or long term health condition that is incurable or which, if left untreated, would likely result in a period of incapacity of more than three calendar days; and for prenatal care*.
4. Voluntary or cosmetic treatments (such as most treatments for orthodontia or acne) which are not medically necessary are not "serious health conditions" unless inpatient hospital care is required. Restorative dental surgery after an accident, or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Treatment of allergies or stress, or for substance abuse, are serious health conditions if all the conditions of the regulation are met.

*NOTE: Prenatal care is included as a serious health condition. Routine preventive physical examinations are excluded.

Continuing Treatment [§ 825.800]

Continuing treatment by health care provider means one of the following:

1. Two or more visits to a health care provider;
2. Two or more treatments by a health care practitioner on referral from or under the direction of a health care provider;
3. A single visit to a health care provider that results in a regimen of continuing treatment or;
4. In the case of serious, long-term or chronic condition or disability that cannot be cured being under the continuing supervision of, but not necessarily actively treated by a health care provider.

Health Care Provider:

1. A doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State in which the doctor practices;
2. Podiatrists; dentist, clinical psychologists, optometrists and chiropractors (under limited circumstances) authorized to practice in the State and performing within the scope of their practice as defined under State law; and
3. Nurse practitioners and nurse-midwives who are authorized to practice under the State law;
4. Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts.

CONTINUATION OF BENEFITS

While an employee is taking leave protected under the FMLA, the employer must maintain health coverage for the employee at the same level as the employee would have had the employee not taken leave.

The regulations [§825.209(f)] indicate that an employer has an obligation to continue maintenance of health care benefits during FMLA leave and to restore an employee after the planned leave ceases.

To eliminate any ambiguity with respect to the employer's obligations to restore benefit levels following return from a planned leave [§825.209(e)] states that when an employee returns from leave he is entitled to be reinstated on the same terms as prior to taking leave, including family or dependent coverage.

INTEGRATION OF FMLA LEAVE WITH PAID LEAVE

If an employer provides paid leave benefit (such as paid vacation leave, paid personal leave or paid family leave), such paid leave may be integrated into the twelve week unpaid leave, at the option of either the employee or employer. The employer is responsible for designating if paid leave used by an employee counts as FMLA leave, based on information provided by the employee.

MEDICAL CERTIFICATION AND UPDATES

An employer may require that a leave request based on the serious health condition of the employee or the employee's child, spouse or parent supported by a certification issued by the health care provider of the employee or of the child, spouse or parent of the employee as appropriate. This provision is meant to prevent employee abuse of the leave requirements. If the employer has reason to doubt the certification given by the employee's health care provider, the employer may, at its own expense, require a second opinion. The second health care provider may be designated by the employer, as long as the health care provider is not employed by the employer.

The FMLA also allows the employer to require the employee to provide later recertifications "on a reasonable basis: and to report periodically on his or her status and his her intention to return to work. The Act also allows the employer to require each employee taking leave due to the employee's serious health condition to obtain certification that the employee is able to return to work.

INTERACTION WITH OTHER LAWS

The FMLA represents a new type of social welfare legislation. No prior federal law has required employers to grant leave to employees for family or medical reasons, to continue to provide paid health benefits when employees are not working, and to hold jobs open while employees are on leave.

COBRA Rights and FMLA

COBRA means continuation coverage requirements of the Title X of the Consolidated Omnibus Budget Reconciliation Act of 1986. The Department of Labor regulations defer to the December 19, 1994 Notice of the Internal Revenue Service (60 FR No. 4, 2278) found in Appendix E to Part 825 with respect to the correlation between COBRA and the FMLA.

• If an employee does not return to work at the end of FMLA leave, a qualifying event triggering the right to elect COBRA continuation coverage occurs on the last day of FMLA leave.
• If an employee, during FMLA leave, informs the employer unequivocally of the intent not of return to work, a qualifying event occurs on the date the employee gives notice to the employer.
• Lapse in coverage during FMLA leave do not affect an employee's right, under the above examples, to COBRA coverage at the end of the FMLA period.
• If the employer paid premiums of the non-returning employee during FMLA leave to maintain coverage under a group health plan, the employer cannot condition COBRA coverage on recovery of those premiums.

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act of 1990 requires employers to make reasonable accommodations for the known, physical or mental limitations of otherwise qualified applicants or employees with disabilities.

The ADA and the FMLA have different purposes, but can both affect an employee's need for leave. Theses laws will overlap when an employee takes leave of absence for a FMLA serious health condition that qualifies as a disability under the ADA. Therefore, the employer may have to accommodate him/her by granting additional leave beyond the 12 weeks of FMLA entitlement. Alternatively, if an employee requests a 6-week leave as an accommodation to seek treatment for disability, that time off also could be counted as FMLA leave for a serious health condition if the employee meets the FMLA requirements.

Maryland Nurturing Leave Act

The State of Maryland has adopted the Federal Medical Leave Act, Annotated Code of Maryland, State Personnel and Pensions, Title 9 Leave Time and Holidays, Subtitle 10 Family and Medical Leave. Under Regulations 9-1001, the employee must use other available accrued leave concurrently with family and medical leave.

CURRENT CASES UNDER FMLA

Cline v. Wal-Mart Stories, Incorporated (846 F. Supp. 442 (D. MD. 1994) Employee, who was demoted from supervisory position , and ultimately terminated, following his return from lengthy medical leave, sued employer under FLMA and ADA, and the wrongful termination under state law. Verdict of $688,000 including $117,000 in compensatory damages and $182,000 in punitive damages in District Court. ( 4th Circuit reduced compensatory damage award to $10,000 and punitive damage award to $50,000, balance of FMLA and ADA damages vacated for reconsideration.) ( Case provided)

Knussman v Maryland, CA B-95-1255, ( D. MD.2/2/1999). Maryland State trooper was awarded $375,000 in compensatory damages for failure to grant 12 weeks of leave to the care of his wife and newborn child; gender discrimination. (See ACLU press release.)