August 28, 2018
Author: Howard B. Jackson, Esq.
Organization: Wimberly Lawson Wright Daves, & Jones PLLC
I. COVERAGE UNDER THE FAMILY AND MEDICAL LEAVE ACT
A. Covered Employers
Under the FMLA, an employer is any person engaged in commerce, or in any industry affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The 20 workweeks need not be consecutive. The terms “commerce” and “industry affecting commerce” are interpreted very broadly.
The term “employ” is also interpreted broadly. It includes part-time employees, and employees who are on leave, so long as there is a reasonable expectation that the employee will return to work.
Employees in the United States and any of its territories or possessions are counted. Employees who are employed outside those areas are not counted.
The legal entity that employs the employee is normally the employer under the FMLA. For example, if a corporation has several operating divisions which are not separate legal entities, the corporation is the employer.
Separate entities can be deemed a “single employer” for purposes of the FMLA. The employees of each entity that is part of the “single employer” are counted for purposes of determining employer coverage and employee eligibility. When determining whether separate entities are a “single employer” for FMLA purposes, no single factor is determinative. Factors typically considered in the analysis include: (1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) degree of common ownership and financial control.
Employer also includes “any person who acts directly or indirectly in the interest of an employer to any of the employer’s employees.” Thus, individuals such as corporate officers who are “acting in the interest of an employer” are individually liable for violations of the FMLA.
Once covered, a private employer remains covered until it reaches a point that it has not employed 50 employees for 20 (nonconsecutive) workweeks in the current or preceding calendar year.
B. Joint Employers
Where two or more businesses exercise control over the work or working conditions of the employee, the businesses may be joint employers under the FMLA. The determination of joint employer status is not based on one factor, but depends on all the circumstances.
A common example of joint employer status is when a temporary placement agency supplies an employee to a second employer. In such circumstances, the employers share, or co-determine, the terms of employment. Whether joint employer status arises when a professional employer organization (“PEO”) contracts with client employers to perform certain functions depends on the facts in question. A PEO is not a joint employer with the client if it merely performs administrative functions, such as handling payroll, benefits, regulatory paperwork, and updating employer policies. On the other hand, if the PEO has the right to hire, fire, assign or direct the control of the client’s employees, the PEO may be deemed a joint employer with its client.
Where joint employer status exists, the employees of both employers are counted for purposes of determining coverage, and employee eligibility. The primary employer must give the required notices, provide FMLA leave, and maintain health benefits. That employer is primarily responsible for job restoration.
Factors considered in determining which is the “primary” employer include the authority and responsibility to hire and fire, assign and place the employee, and provide benefits. For example, in most instance the temporary placement agency is the primary employer. Where a PEO is a joint employer, in most instances the client employer is the primary employer.
C. Public Agency Coverage
Public agencies are covered employers, without regard to the number of employees they employ. Employees of public agencies must meet all eligibility requirements, however. (Employee eligibility is discussed in the following section.)
The term public agency includes the government of the United States, the government of a State or political subdivision of a State, an agency of the United States, a State or political subdivision of a State, or any interstate governmental agency. Generally, a State, county, town or city are considered separate employers for purposes of determining employee eligibility.
D. Eligible Employees
An eligible employee is an employee of a covered employer who: (1) has been employed by the employer for at least 12 months; (2) has worked at least 1,250 hours for the employer during the 12 months preceding the start of the leave; and (3) is employed at a work-site where 50 or more employees are employed by the employer within 75 miles of the work site.
The 12 months of employment need not be continuous. Subject to certain exceptions, employment periods prior to a break in service of 7 years or more need not be counted in making the determination. Employment periods preceding a break in service of more than 7 years must be counted in two circumstances: (1) where the break is occasioned by the fulfillment of the employee’s National Guard or Reserve military service obligation; and (2) a written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the break in service (for example, after completing education, or for childrearing purposes).
Time periods when an employee is on leave are counted for purposes of determining whether the 12 month requirement has been met. The 1,250 hours are calculated as with time worked under the Fair Labor Standards Act (“FLSA”). If the employer does not maintain an accurate record of hours worked, including for exempt employees under the FLSA, the employer has the burden of showing that the employee has not worked the required number of hours.
An employee who is returning from fulfilling is or her National Guard or Reserve duty obligation shall be credited with the hours of service that the employee would have performed but for the period of military service when determining whether the 1,250 hour threshold has been met.
The determination of whether the 12 months of employment and 1,250 hours of service requirements have been met is made as of the date the FMLA leave is to start. This can result in an employee becoming eligible while on leave. For example, the employee is out of work because of illness 2 days before they have reached 12 months of service. The illness continues and becomes a covered condition, such that the employee remains out of work for more than 2 days. The employee has worked more than 1,250 hours during the previous year. On the third day of the leave, the employee becomes eligible for FMLA leave.
The determination of whether there are 50 employees within 75 miles of the work site is made at the time the employee gives notice of the need for leave. For that specific leave, the employee’s eligibility is not affected by any subsequent change in the number of employees.
A work site typically refers to one location, or a group of contiguous locations. Structures which form a campus or industrial park, or separate facilities in proximity to one another, may be considered a single site of employment.
Separate buildings that are not connected or in immediate proximity are a single work site is they are in reasonable geographic proximity, are used for the same purpose, and share the same staff and equipment. For example, if an employer manages several warehouses in a metropolitan area but regularly shifts or rotates the same employees from one building to another, the multiple warehouses would be a single worksite.
An employee’s work site is typically the site the employee reports to or, if none, the site from which the employee’s work is assigned. For employees with no fixed site, (construction workers, transportation workers, seamen, pilots), the work site is the site to which they are assigned as their home base, the site from which their work is assigned, or the site to which they report.
The employee’s personal residence is not the work site for employees such as sales persons who cover a territory and generally leave to work and return from work to their personal residence, or for employees who work at home under concepts such as telecommuting. For such employees, the worksite is the office to which they report and from which assignments are made. The 75 mile distance is measured by surface miles, using surface transportation over the public streets, roads, highways and waterways, by the shortest route from the facility where the employee who needs leave is employed. If surface transportation is not available, the distance is measured by using the most frequently utilized mode of transportation.
E. Qualifying Reasons For Leave
There are six qualifying reasons for leave:
1. For birth of a son or daughter and to care for the newborn child.
2. For placement with the employee of a son or daughter for adoption or foster care.
3. To care for the employee’s spouse, son, daughter, or parent with a serious health condition.
4. Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job.
5. Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or who has been notified of an impending call or order to active duty) in support of a contingency operation.
6. To care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member.
F. Serious Health Condition
At times, this determination is obvious. In closer cases, however, a careful reading of the many qualifying possibilities may be required. In general, a “serious health condition” entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves “inpatient care” (as defined in the regulations) or “continuing treatment by a healthcare provider” (as defined in the regulations).
Two terms that are used when describing inpatient care, and continuing treatment are specifically defined. They are “incapacity” and “treatment.” The term “incapacity” means inability to work, attend school, or perform other regular daily activities because of the serious health condition, treatment therefore, or recovery therefrom.
The term “treatment” includes, but is not limited to, examinations to determine whether a serious health condition exists and evaluations of the condition. Treatment does not include routine physical exams, eye exams, or dental exams.
Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with such inpatient care. For example, staying overnight for surgery is included, as well as the three days of required recovery time at home.
A serious health condition that involves continuing treatment by a health care provider includes each of the following:
1. A period of incapacity of more than 3 consecutive full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves: (a) treatment 2 or more times within 30 days of the first day of incapacity (unless extenuating circumstances exist), by a health care provider, or nurse or other provider of health services under orders of or on referral by a health care provider; or (2) treatment by a health care provider on at least one occasion, which results in a regiment of continuing treatment under the supervision of the health care provider. For purposes of (a) and (b) herein, treatment by a health care provider means an in-person visit to a health care provider. The first (or only) visit must take place within 7 days of the first day of incapacity. The term “extenuating circumstances” in (a) means circumstances that are beyond the employee’s control that prevent the follow up visit as planned (for example, the health care provider does not have an available appointment).
2. Pregnancy or prenatal care.
3. Chronic conditions. A “chronic condition” is one which: (a) requires periodic visits (at least twice a year) for treatment by a health care provider, or by a nurse under the direct supervision of a health care provider; (b) continues over an extended period of time; and (3) may cause episodic rather than a continuing period of incapacity (for example, asthma, diabetes, epilepsy).
4. Permanent or long term conditions. A period of incapacity which is permanent or long term based on a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment from, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.
5. Conditions requiring multiple treatments. Any period of absence to receive multiple treatments by a health care provider, or by a provider of health services under the orders of or on referral by a health care provider, for (a) restorative surgery after an accident or other injury; or (2) a condition that would likely result in a period of incapacity of more than 3 consecutive full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy), kidney disease, (dialysis), or severe arthritis (physical therapy).
G. Leave For Substance Abuse Treatment
Substance abuse can be a serious health condition, if the requirements for that status are met. FMLA leave may be taken for treatment for substance abuse by a health care provider, or a provider of health care services on referral by a health care provider. Absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.
An employee may be discharged for violation of the employer’s substance abuse policy. If the employer has an established policy, applied in a nondiscriminatory manner, that has been distributed to all employees, and that provides under certain circumstances an employee may be terminated for substance abuse, an employee may be terminated pursuant to that policy whether the employee is on FMLA leave or not. An employer who wishes to take this step should make sure that the policy has been applied consistently and in a non-discriminatory manner to avoid creating an appearance of retaliation against the employee for having taken FMLA leave.
Note that an employee may take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.
H. Leave for Pregnancy, Birth, Adoption and Foster Care
Both the mother and father are eligible for leave due to the birth of a child. Entitlement for leave to be with a healthy newborn (i.e. bonding time) ends 12 months after the date of birth.
A husband and wife who are both eligible and employed by the same employer may be limited to a combined total of 12 weeks of leave during any 12 month period if the leave is taken for birth of the child, to care for a healthy child after birth, for placement of a child with the employee for adoption or foster care, or to care for the employee’s parent with a serious health condition.
Where a spouse has used a portion of leave for one of the reasons listed above, the employee remains eligible for the remainder of that employee’s 12 week entitlement for leave based on other reasons. For example, if each spouse took 6 weeks of leave based on the birth of a child, each could use an additional 6 weeks of leave for the employee’s own serious health condition, or to care for a child with a serious health condition.
The mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. The mother is entitled to leave for incapacity based on pregnancy even though she does not receive treatment from a health care provider, and even if the absence does not last more than 3 consecutive days. For example, a pregnant employee may not be able to report to work because of severe morning sickness.
The husband is entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated, or if needed to care for her during prenatal care, or if needed to care for her following the birth of the child if the spouse has a serious health condition.
Both the mother and father are entitled to FMLA leave to care for a child with a serious health condition. Thus, a husband and wife may take up to 12 weeks of leave each if needed to care for a newborn child with a serious health condition, even if they work for the same employer.
An eligible employee may take intermittent or reduced schedule leave to be with a healthy newborn child only if the employer agrees. If the employer agrees, the employer may require the employee to temporarily transfer to an available alternative position for which the employee is qualified and which better accommodates the recurring periods of leave than the employee’s regular position. Such transfers are subject to other possible compliance issues, such as collective bargaining agreements, federal law (such as the Americans With Disabilities Act), and State law.
In cases of leave for adoption or placement for foster care, an employee may take leave before the adoption or placement if the absence is required for the adoption or placement to proceed. For example, the employee may be required to attend counseling sessions, appear in court, consult with counsel or physicians, or travel to another country to complete an adoption.
Both spouses are eligible for leave for adoption or placement for foster care. Entitle to leave for this reason expires at the end of the 12 month period beginning on the date of placement.
As with the birth of a healthy child, an employee may use intermittent or reduced schedule leave after placement of a health child for adoption or foster care only if the employer agrees. The same rules and considerations with regard to a temporary transfer apply.
I. Definitions of Spouse, Son, Daughter and Next of Kin
Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee lives. This includes common law marriage in States were it is recognized.
Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a child. This term does not include parents “in law.”
For FMLA leave reasons other than military-related, son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or child of a person standing in loco parentis, who is either under age 18, or is age 18 or older and “incapable of self care because of a physical or mental disability” at the time the FMLA leave is to begin.
Incapable of self-care means the person requires active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” (ADLs) or “instrumental activities of daily living” (IADLs). Activities of daily living include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, etc.
“Physical or mental disability” means a physical or mental impairment that substantially limit one or more major life activities of the individual. The DOL regulations refer to the EEOC’s regulations under the ADA for definition of those terms.
Son or daughter on active duty or call to active duty, and son or daughter of a covered service member means a biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee, or service member, stood in loco parentis, who is of any age.
Next of kin of a covered service member means the nearest blood relative other than the covered service member’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the covered service member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins. The covered service member can designate in writing another blood relative as the nearest blood relative for purpose of military caregiver leave under the FMLA. In the absence of such a written designation, and where there are multiple family members with the same level of relationship to the covered service member, all such family members are considered the covered service member’s next-of-kin.
Such persons may take FMLA leave to care for the covered service member, either consecutively or simultaneously.
An employer may require reasonable documentation of the family relationship. This can be a simple statement from the employee, or a birth certificate, or court document.
J. Care For Family Members
The term “needed to care for a family member” can take several forms. It includes situations where the family member cannot care for his or her own basic medical, hygienic, or nutritional needs, or safety, or is unable to transport himself or herself to the doctor. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.
The term also includes situations where the employee may be needed to substitute for others who normally care for the family member or covered service member, or to make arrangements for changes in such care. The employee need not be the only individual or family member available to care for the family member or covered service member.
K. Leave for A Qualifying Military Exigency
An employee may take FMLA leave while the employee’s spouse, son, daughter or parent (the “covered service member”) is on active duty or call to active duty status for qualifying exigencies. Qualifying exigencies include the following examples:
1. To address any issues that arise from the fact that the covered service member is notified of an impending call or order to active duty 7 or less calendar days prior to the date of employment.
2. To attend military events and related activities, such as official ceremonies or programs, or to attend family support or assistance programs, and informational briefings that are related to the active duty or call to active duty status of the covered service member.
3. To arrange for child care, or changes in such arrangements.
4. To enroll or transfer a child in school.
5. To attend meetings with staff at a school or day care program, regarding parent teach conferences, disciplinary measures, or the like, when such meetings are necessary due to circumstances arising from the call to active duty status of a covered military member.
6. To make or update financial or legal arrangements to address the covered service members’ absence while on active duty or call to active duty status.
7. To attend counseling provided by someone other than a health care provider for oneself, for the covered military member, or for the child of the covered military member, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.
8. Leave of up to five days to spend time with a covered service member who is on short term, temporary rest and recuperation leave during the period of deployment.
9. To attend arrival ceremonies, reintegration briefings and events and other ceremonies sponsored by the military for a period of 90 days following termination of the covered military member’s active duty status.
10. To address issues that arise from the death of the covered military member while on active duty status.
11. To address other events which arise out of the covered military member’s active duty or call to active duty, provided that employer and employee agree that such leave shall qualify as an exigency, and agree to the timing and duration of the leave.
A call to active duty for purposes of leave taken because of a qualifying exigency refers to a Federal call to active duty. State calls to active duty are not covered unless under order of the President of the United States in support of a contingency operation.
A military operation qualifies as a contingency operation if it: (1) is designated by the Secretary of Defense as an operation in which members of the armed force are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or (2) results in the call or order to active duty of members of the uniformed services during a war or national emergency declared by the President or Congress.
L. Leave to Care for Military Service Members
Eligible employees are entitled to FMLA leave to care for a current member of the armed forces who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active for which he or she is undergoing medical treatment, recuperation or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list. Eligible employees may not take leave under this provision to care for former members of the Armed Forces on the permanent disability retired list. A “serious injury or illness” means an injury or illness incurred by a covered service member in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating.
“Outpatient status” with respect to a covered service member means the status of a member of the Armed Forces assigned to either a military medical treatment facility as an outpatient; or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.