FMLA Q&As affecting your company - by Debbie D'Ambrosio, V.P., Risk Manager
The Family and Medical Leave Act can be HR's greatest headache. One of the reasons is there is not just one situation for all events that are covered by the act. Like most companies, you’ve probably seen an increase in requests for Family Medical Leave. Be sure your HR department can answer these questions and work within the FMLA parameters.
Family Medical Leave Act requires covered eligible employers to grant up to 12 weeks (26 weeks for those caring for an injured service member) of unpaid leave per year to an employee that has worked 1,250 hours in the preceding 12 months. A covered employer is a private-sector employer with 50 or more employees within a 75-mile radius of the worksite.
Q: Does your company policy for PTO (paid time off) allow exempt employees to take vacation in partial-day increments? If so, if an exempt employee who regularly works 8 hours a day is on intermittent FMLA and works 4 hours in a day and takes the other 4 as leave, can they be allowed to take the FMLA hours as PTO?
A: As long as you are consistent in applying this policy, you can substitute paid leave for unpaid leave. The final FMLA 2009 regulations simplified rules for this. Employees should be informed of their rights in the policies t you give to them. The employer or the employee can request the paid leave for the unpaid leave.
Q: Do employees accrue vacation while on FMLA leave?
A: An employee may or may not accrue vacation depending upon the company policy, but is not entitled to accrue additional benefits or seniority during unpaid FMLA leave. Again, it needs to be spelled out in your policy. Benefits that an employee has prior to the leave must be available to the employee upon the return from leave.
Q: If you have a temporary employee working for you and you are going to hire this person, will the hours worked as a temporary employee count toward the requirements for FMLA?
A: Yes, there have been several court cases that held the hours must be counted in determining eligibility for FMLA.
Q: If you have a temporary employee taking FMLA leave that has worked for you for a while, and they have met the requirements for FMLA through their staffing company, will you be required to bring them back once they are finished with the leave?
A: You will be required to accept the employee back if the assignment has continued. If, during the absence, the assignment has been completed, you do not have any requirements to bring them back to your company.
Q: How often can a company require an employee on leave to check in?
A: An employer may request recertification no more often than every 30 days, but a company may ask them to check in more often if you are not asking for recertification. It must reasonable and you must be consistent with all employees on FMLA leave.
Q: An employee is out on medical leave and during this time she becomes eligible for FMLA. Do you have to grant her FMLA once she meets the year anniversary?
A: Yes, the employee is eligible for the leave under FMLA. You cannot make the allotment include the time that has already been taken off for medical leave.
Consistency and staying up on changes to the FMLA are of major importance to help your company avoid paying penalties. Covered employers are required to post a notice for employees outlining the basic provisions of the FMLA and are subject to a $110 civil money penalty if they willfully fail to post such a notice.
A number of states have family leave statutes. Nothing in the FMLA supersedes a provision of state law that is more beneficial to the employee, and employers must comply with the more beneficial provision. Under some circumstances, an employee with a disability may have rights under the Americans with Disabilities Act.
More detailed information, including copies of explanatory brochures, may be obtained by contacting the local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm). Compliance assistance information is also available from the Wage and Hour Division's Web site(http://www.wagehour.dol.gov). For additional assistance, contact the Wage and Hour Division at 1-866-4USWAGE (1-866-487-9243).
The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Family and Medical Leave Act. Among the many resources available are:
Family and Medical Leave Act Advisor(http://www.dol.gov/elaws/fmla.htm): This interactive Web-based tool provides general information about application of the FMLA, including valid reasons for leave, employee/employer notification responsibilities, and employee rights and benefits.
Fact Sheet on Family and Medical Leave Act (http://www.dol.gov/whd/regs/compliance/whdfs28.pdf)
Fact Sheet 28A: Family and Medical Leave Act Military Leave Entitlements(http://www.dol.gov/whd/regs/compliance/whdfs28a.pdf)
FMLA Compliance Guide(http://www.dol.gov/whd/regs/compliance/1421.htm): Summarizes FMLA provisions and regulations and provides answers to the most frequently asked questions.
Memo: Protection of Uniformed Servicemembers' Rights to Family and Medical Leave(http://www.dol.gov/vets/media/fmlarights.pdf): Provides information on FMLA eligibility rules for reservists returning to private employment.
Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-fmla.htm) Web page.
This update is intended to convey general information and may not take into account all circumstances relevant to a particular company or individual.