Employees Covered by the FMLA

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September 12, 2018
Author: Greg Guidry
Organization: OneBane Law Firm

A covered employer is:

A. 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 weeks in the current or preceding year;

1. Part-time employees, temporary employee and employees on leave are counted as “employed for each working day” as long as they are on the payroll for each day of the workweek.

2. If an employee is added to the payroll after the start of the workweek or taken off the payroll before the end of the work week he would not count as being employed “on each working day of that week.”

B. Any public agency as defined in §203(x) of the Fair Labor Standards Act; and
C. Local educational agencies and private elementary and secondary schools.
D. Joint Employer Coverage (§§ 825.106 & 825.111): The new regulations provide clarifications and modifications to the rules pertaining to joint employment.

1. A Professional Employer Organization (PEO) is an organization that contracts with client employers to perform certain functions, such as payroll, benefits, etc. A PEO and the client employer are not joint employers unless the PEO: (1) exercises control over the client company's employee, (2) has authority to hire, fire or supervise employees, or (3) benefits from work performed by the client's employees. See § 825.106(b)(2).

2. Where a PEO is determined to be a joint employer, the client employer is most likely to be the primary employer. See § 825.106(c).

3. The worksite of a jointly-employed worker is the primary employer's office -- where employee is assigned or reports -- unless the employee has worked for at least one year at a facility of the secondary employer. In this case, the secondary employer's location will be deemed the employee's worksite for determining whether the 50 employee/75-mile rule has been satisfied.

A. To Be Eligible for FMLA Benefits, an Employee Must:
1. Work for covered employer;
2. Have worked for the employer for at least a total of 12 months (all stints of employment are covered);
3. Have worked at least 1,250 hours over the 12-month period preceding the requested leave; and
4. Work at a location where at least 50 employees are employed by the employer within 75 miles.
B. For purposes of determining whether an employee has been employed by an employer for at least 12 months and has worked at least 1,250 hours in the 12 months preceding leave, the DOL made the following changes to 29 C.F.R. § 825.110.
C. The 12 months of employment need not be consecutive, but employers need not count a break-in-service of seven years or more in determining whether an employee has been employed for at least 12 months. See § 825.110(b)(1). There are two exceptions to the seven-year-break-in-service rule. The seven-year-breakin-service rule does not apply if the break in service is related to (1) an employee's fulfillment of his/her military obligations or (2) a period of approved absences or unpaid leave, such as for education or child-rearing purposes, where a written agreement or collective bargaining agreement exists concerning the employer's intent to rehire the employee. If either of these circumstances exists, the employee's prior employment would count towards the 12 months of employment regardless of how much time has lapsed between the two periods of employment.

See § 825.110(b)(2). To be consistent with the employer's obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the regulations state that time spent fulfilling an employee's military service obligations in either the National Guard or Reserves is counted toward the employee's 1,250-hour and l2-month requirements. (Note: The DOL had issued this same opinion several years ago, but it was not part of the prior regulations.)
See § 825.110(c)(2).

D. The regulations clarify that an employee who is not eligible for FMLA protection at the beginning of his/her leave, may begin FMLA once he/she has meets eligibility requirements. This is contrary to several court cases that have held that because eligibility is determined as of the date the initial leave begins, an employee would not become eligible for FMLA protection while on non-FMLA leave. See § 825.110(d). The revised regulation also continues to allow an employee to apply time spent on paid or unpaid leave towards the l2-month requirement, provided that he/she remains on the employer's \"payroll\" and is receiving other benefits. See § 825.110(b)(3).

A. For an FMLA Qualifying Reason, a Covered Employer Must:
1. Grant an Eligible Employee up to a total of 12 workweeks of job protected, unpaid leave during any 12-month period;
a. The employer should designate which of four possible methods for computing the 12-month period it will use:
(1) the rolling backward 12-month period;
(2) the calendar year;
(3) any fixed 12-month leave year, such as a fiscal year, a year required by state law, or a year starting on the employee’s anniversary year; or
(4) the 12-month period measured forward from the date any employee’s first FMLA leave begins.
(a) Note: The regulations set the year for leave to care for an injured service member, and the employer has no choice. This is discussed below.
b. The rolling backward 12-month period prevents leave stacking in which an employee takes 12 weeks at the end of a year and then 12 weeks at the beginning of the next year. A rolling year ensures that the only FMLA leave available is that which has not been used up in the 12 months previous to the request.
c. Note that when an employer changes the method of calculation or designates a method where it had not previously, the employer is required to give employees 60 days notice and to use the method most favorable to the employee during the transition period.
2. Maintain the eligible employee’s health benefits during the leave period at the same level and under the same conditions as if the employee had continued to work.
3. Reinstate eligible employees to the same position or a position with equivalent status, pay, benefits and other employment terms at the conclusion of the FMLA leave.
a. This includes a restoration of all benefits in full, with no waiting period, on the day the employee returns from FMLA leave.
b. However, “key” employees (employees who are salaried and whose earnings place the employee in the top 10% of those employees) may be denied the right to return to the same or equivalent job if the employer can show that returning the employee to the same or similar position would cause “substantial and grievous economic injury” to the employer.

B. Reasons for Taking Leave:
1. A FMLA qualifying reason is:
a. For the care of the employee’s child (birth, or placement for adoption or foster care);
b. For the care of the employee’s spouse, son or daughter, or parent who has a serious health condition;
c. For a serious health condition that makes the employee unable to perform their job.
d. FMLA Military Leave:
(1) Exigency Leave: Under the new provisions, a spouse, son, daughter or parent of a servicemember receives up to 12 weeks of FMLA leave for being on active duty or being notified of an impending call or order to active duty in the Armed Forces. This applies to Reserves, National Guard, and Regular Armed Forces. Under the law, leave may be used for a “any qualifying exigency” arising out of the current tour of active duty or because of being notified of impending call to duty. The purpose of the leave is to prepare for and participate in activities related to the deployment of a servicemember.
(2) Caring for an Injured or Ill Servicemember: Under the new provisions, 26 weeks of FMLA leave during a 12-month period are provided to a spouse, son, daughter, parent, or nearest blood relative to care for a recovering service member. A “recovering servicemember” is a member of the Armed Forces who has suffered an injury or illness while on active duty that renders the person unable to perform the duties of the member’s office, grade, rank, or rating. The 26 weeks of leave are also available to veterans for up to five years after the veteran leaves military service if he or she develops a service-related injury or illness that was incurred or aggravated while on active duty.

C. Definition of “serious health condition”: A “serious health condition” is defined as an illness, injury, impairment or condition that involves:
1. inpatient care in a hospital, hospice or residential medical care facility;
2. a period of incapacity requiring an absence of more than three consecutive days, that also involves continuing treatment by a health care provider; or
3. continuing treatment under the care of a health care provider for a chronic or long term health condition that is incurable or serious that if not treated would result in a period of incapacity of three consecutive days.

D. Intermittent Leave or Leave on a Reduced Schedule:
1. Employees may take FMLA leave intermittently or on a reduced leave schedule as follows:
a. subject to the employer’s approval, if FMLA leave is for the birth and care or placement for adoption or foster care;
b. whenever medically necessary to care for a seriously ill family member or because the employee is seriously ill and unable to work.
2. Under the FMLA, employers may dock exempt workers for FMLA qualifying partial day absences without destroying the exemption. (For non-FMLA absences, partial day pay docking would destroy the worker’s exempt status, making them subject to overtime requirements of the FLSA).

E. Paid Leave: Employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave.

F. Special Issues Related to Pregnancy and Child Birth
1. A pregnant woman may take FMLA leave before the birth of her child for prenatal care or if her condition makes her unable to work. See § 825.120(a)(4).
2. A husband may take FMLA leave to care for his pregnant spouse if she is incapacitated (including providing psychological comfort and care). See § 825.l20(a)(5).
3. A spouse may take FMLA leave to care for a pregnant woman; thus, a boyfriend, fiancé or even the father of the child are not eligible to take this leave.
4. Both the mother and father may take up to 12 weeks of leave to care for a newborn child with a serious health condition even if both are employed by the same employer. See § 825.120(a)(6).

G. Special Issues Relating to \"Serious Health Condition\":
1. Continuing Treatment: Under the current regulations, an employee must be incapacitated for more than three consecutive full calendar days before qualifying for the “continuing treatment” prong of “serious health condition.”
2. To satisfy the \"continuing treatment\" requirement, an employee:
a. Must receive treatment two times within 30 days of the first day of incapacity, unless extenuating circumstances exist.
b. Must see a health care provider within seven days of the first day of incapacity.
c. Must visit the health care provider in person (subsequent treatment can still be a regimen of continuing treatment such as prescription drugs or physical therapy).
(1) Comment: The \"continuing treatment\" regulations may result in uncertainty as to whether these types of absences count as a FMLA absence, given that the employee now has up to 30 days to either receive treatment a second time from a health care provider or to have a regimen of continuing treatment following the first treatment by the health care provider.
3. Chronic Health Condition: To satisfy the requirement of having a \"chronic health condition\", the employee must visit a health care provider at least twice a year. See § 825 .115(c)(1).

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