Complying with the Family and Medical Leave Act (FMLA)

The FMLA allows eligible employees to take up to 12 weeks unpaid leave.

If your company employs at least 50 employees within a 75-mile radius, the federal Family and Medical Leave Act (FMLA) applies to your workforce. The Act entitles eligible employees of covered employers to up to 12 weeks of unpaid leave for their own serious health condition, a serious health condition of an immediate family member, or the birth or adoption of a child. Employees who have been employed by the employer for at least one year and worked at least 1,250 hours in the current or previous calendar year are eligible for leave.

FMLA regulations define a serious health condition as any condition that causes one of the following:

• inpatient care where the person is admitted to the hospital overnight and any period of incapacity following hospitalization
• A period of incapacity of three or more days
• Treatment from a health care provider two or more times
• A continuing regimen of treatment by a health care provider
• Any period of incaptacity due to pregnancy or prenatal care
• Treatment for a chronic serious health condition such as asthma, diabetes or epilepsy
• A period of incapacity due to a permanent or long-term condition for which treatment may not be effective, such as Alzheimer's or stroke; or
• Multiple treatments from a health care provider on referral from another health care provider

To ensure employees are taking leave for legitimate purposes, employers should request medical certification of the need for leave. Under FMLA regulations, employees do not have to provide certification unless the employer asks for it.

Granting or denying FMLA leave involves some rather tight deadlines. When they foresee need for leave, employees are supposed to provide their employer with at least 30 days notice. However, when the need is not foreseeable, FMLA regulations state that employees are to inform the employer “as soon as practicable.” Regulations require employers to decide whether leave can be designated as FMLA leave within two business days of receiving the request.

FMLA leave is generally unpaid. However, employers that provide sick leave or paid time off may allow employees to substitute paid leave for the unpaid leave. Ultimately, employers decide whether the time off is paid or unpaid, but it is wise to have a consistent policy and stick to it. Inconsistency in applying the policy may lead to charges of discrimination.

Eligible employees may take FMLA leave for the serious health condition of an immediate family member. Federal law does not recognize domestic partnerships, but leaves the definition of marriage to the employee’s state of residence (note: not the state of employment). FMLA regulations define “immediate family” as spouse, parents, children under 18 or disabled children over 18. In-laws and domestic partners are not immediate family members under the federal FMLA. Some state leave laws allow leave to care for domestic partners.

Most employees returning from FMLA leave are entitled to reinstatement to the same or equivalent position as the one they left. Key employees are the exception. Key employees are those whose position is so integral to the company’s success that employers must replace them when they go on leave. Key employees must be in the top ten percent of company payroll.

Employers can refuse to reinstate a key employee if doing so would cause “grievous economic harm.” If the employer makes this determination after the employee is on leave, the key employee has the right to return immediately. Employers should be prepared with solid economic data to prove their claim of “grievous economic harm.”

Employee Benefits

Employers that provide health benefits to their employees must maintain them while an employee is on FMLA leave. Employers should establish a leave of absence policy that conforms to the contractual language of their insurance carriers as well as state and federal law.

If the employee pays some or all of the premiums in the form of per-paycheck contributions, the employee is still responsible for making those premium payments. Employers are advised to bill the employee at home or make arrangements to help the employee pay premiums if the leave is unpaid.

Once the 12 weeks of FMLA has been exhausted the employee's coverage in most circumstances should be terminated and the employee should be given the right to continue coverage under COBRA. Some employers continue an employee’s benefits as a favor, hoping the employee will return to work quickly. However this potentially jeopardizes the employee’s health benefits. If the employee is not actively at work (typically a definition of eligibility) and is beyond the 12 weeks of FMLA, the carrier may decline claims payments.

Coordinating FMLA With Other Laws

Frequently, employees who have a serious health condition under the FMLA are also disabled within the meaning of the Americans with Disabilities Act (ADA). Employers must remember that the two are not the same. A person is disabled under the ADA if he or she suffers from a mental or physical impairment that “substantially limits a major life function” such as sleeping, eating or caring for oneself. To be protected in the workplace, an employee must be disabled within the ADA’s meaning, but still be able to perform the job’s essential functions with or without a reasonable accommodation.

Employers sometimes run into trouble when they terminate employees after they exhaust their 12 weeks of FMLA leave. If an employee is disabled after the 12 weeks, he or she may still have protections under the ADA. For instance, an employee has been off on FMLA leave for 12 weeks, but his doctor restricts him to three more weeks of rest. Those three weeks could be considered a reasonable accommodation under the ADA. In this case, the employer would be wise to give the employee the additional three weeks and allow him to come back to work.

Courts will allow an employer to terminate an employee who has used all of her FMLA leave, if the employer can demonstrate that providing the additional time off would be an undue hardship on the employer. An undue hardship for one employer may not be one for another. So employers should document the amount of money and workplace disruption providing the accommodation would entail. The burden is on the employer to prove the accommodation is an undue hardship.

The FMLA also overlaps with Title VII of the Civil Rights Act. Employers cannot discriminate against employees because they are pregnant or may become pregnant. Doing so violates both acts. Employers should check the laws in their states and develop leave policies to comply with both the federal and state laws.

Minimum Wage Increases

The hourly minimum wage increased to $7.50 per hour on January 1, 2007; $11.25 per hour for time-and-a-half; and $15.00 per hour for double time.

You may need to adjust salaried, nonexempt employee's salaries to correspond with the new minimum wage.

2007 California Employment Posters

Every California business must post the 2007 Employment Poster which features all 16 required California and Federal notices including the notice of the increase in the California minimum wage effective January 1, 2007. You are required to post a compliant Employment Poster in a conspicuous location in the workplace where all employees and applicants can see it. You need to post a separate poster in each location, branch, and satellite office.

Failure to post all required federal posters can lead to fines of up to $17,000. And remember, if any of your company’s workers are Spanish-speaking, you may need to order the Spanish version. For resources on where to order your 2007 Employer Posters at a discounted rate, please contact us.