Restoration After A Leave Pursuant To The Family Medical Leave Act & Managing Intermittent/Reduced Schedule Leave

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July 27, 2018

What is the Family and Medical Leave Act of 1993?
The Family and Medical Leave Act of 1993 (“FMLA”) provides eligible employees of a covered employer with the right to take unpaid leave for a period of us to 12 workweeks in any 12-month period because of the birth of a child, the placement of a child for adoption or foster care, because the employee is needed to care for a family member (child, spouse, parent) with a serious health condition or because of the employee’s own serious health condition that makes the employee unable to do his or her job.

The FMLA is intended 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. The FMLA seeks to accomplish these purposes in a manner that accommodates the legitimate interests of employers, and which minimizes the potential for employment discrimination on the basis of sex, while promoting equal employment opportunity for men and women. In addition, when family emergencies arise requiring employees to attend to their seriously ill children or parents, or to newly-born adopted infants, or even to their own serious illness, workers need reassurance that they will not need to choose between their job security and meeting their personal and family obligations or tending to vitla needs at home.

Which Employers are Covered Under the FMLA?
The term “employer” means any person engaged in commerce or in any industry or activity 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. This definition includes any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer, any successor in interest of an employer and any public agency. Any employee that appears on the payroll for each working day during a week counts as an employee for that particular week. Of note, employees do not actually have to perform any work to be counted. If they are on the payroll, even if on a leave of absence, they will be counted for purposes of calculating the 50-employee minimum under the FMLA. However, those employees only count if the employer has a reasonable expectation that they will return to work at the end of leave. For example, employees who have been laid off are not included in the calculation because the employer does not reasonably expect that they would return.

Joint Employment Under the FMLA
Co-employment is a legal doctrine which applies when two businesses exert some control over an employee’s work or working conditions. Relationships between temporary staffing agencies and business clients are typical examples of joint employment. The FMLA provides for co-employer liability when temporary employees are involved. Temporary and leased employees are counted as employees for FMLA compliance and must be included by employers to determine whether its “head count” of “total number of employees” reaches the minimum 50- employee threshold required to be governed by FMLA and its regulations. The determination depends upon all the facts in the particular case. Generally, the following facts are considered when determining whether a joint employment relationship exists:

1. The nature and degree of control of the employees exercised by each employer;
2. The degree of supervision of the work by each employer;
3. Each employers’ power to determine pay rates or methods of payments of the employee;
4. The employer’s ability to hire or fire the employee directly; and
5. Which employer prepares the payroll and payment of wages

Many lawsuits involving co-employment liability under FMLA focus on whether the employees of the “co-employer” are sufficient to reach this 50-employee threshold to mandate FMLA compliance. Under FMLA regulations, temporary staffing agencies are generally designated as “primary” employers and their business clients (employers) as “secondary” employers. Primary employers (agencies) are responsible for approving FMLA leave and giving FMLA notice to eligible temporary employees, and maintaining their health benefits, and restoring the employee to his/her job following the leave under FMLA requirements. As “secondary employer,” the business client is responsible for accepting the employee back after the leave (as long as the company continues to use the services of a temp employee from that staffing agency, the employee’s “primary employer.”). This responsibility holds even if this means bumping another temp worker who replaced the employee on FMLA leave.

Who is Eligible for FMLA Leave?
An “eligible employee” is an employee of a covered employer who has been employed by the employer for at least 12 months and has worked at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave. These 12 months need not be consecutive. If the employee is maintained on the payroll for any part of a week, the week counts as a week of employment. Of note, employees that are called to military duty should be credited with the months they would have worked had they not been called to duty.

The 1,250 hour requirement is calculated to an average of about 24 hours per week for the 12 month period (or 25 hours a week if based on a 50 week year). When calculating the number of hours an employee has worked, an employer should be cognizant of the standards of computing compensable hours in the Fair Labor Standards Act. If an employee requesting leave is an exempt employee under the FLSA, and the employee has met the 12-month requirement to qualify for leave, then the employee is presumed to have worked the requisite 1,250 hours.

An employee must also work at a location where at least 50 employees are employed by the employer within 75 miles. To calculate the 75-mile distance, an employee should use the shortest route available for surface transportation. For example, an employee should use the distance it would take to travel by car as opposed to an airplane unless flying is the most frequently used mode of transportation between the employer’s two sites.

As a general rule, an employee’s worksite will be the site where the employee reports to work, or if none, from which the employee’s work is assigned. In the event an employee has no fixed worksite (i.e. construction workers, salespersons), the “worksite” is the site to which he/she is assigned as home base, from which the work is assigned, or to which he/she reports. Finally, the determination of whether an employee is eligible for FMLA leave is made as of the date the employee requests the leave.

Under What Circumstances are Employers Required to Grant Family and Medical Leave?
An employer covered by the FMLA must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for the birth or placement with the employee of a child for adoption or foster care. Leave for birth, adoption or foster must conclude within 12 months of the birth or placement. An employee is entitled to FMLA leave if he or she is unable to work because of a serious health condition. Covered employers must also grant leave to enable an employee to care for an immediate family member (spouse, child, or parent) with a serious health condition. There are two ways to qualify as a parent of an employee under the FMLA. The person who requires care must be either (1) the biological parent of the employee requesting FMLA leave or (2) a person who stood in loco parentis to the employee. Generally, an employee is not entitled to FMLA leave because in-laws, grandparents, or siblings have a serious health condition.

With respect to the definition of child under the FMLA, the employee’s child must be under 18 and need not be a biological child. If the child is over 18, the employee may still be entitled to FMLA leave to care for him or her so long as the child is incapable of self-care because of a physical or mental disability. The child is incapable of self-care if he or she requires active assistance or supervision in activities of daily living (which include things like bathing, eating, and paying bills). A parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:

(1) has a disability as defined by the ADA;
(2) is incapable of self-care due to that disability;
(3) has a serious health condition; and
(4) is in need of care due to the serious health condition

It is only when all four requirements are met that an eligible employee is entitled to FMLA protected leave to care for his or her adult son or daughter. The age of the onset of the disability – that is, whether the son or daughter became disabled before or after turning 18 years of age – is irrelevant to an assessment of whether leave for taking care of the son or daughter is protected under the FMLA.

An employee may qualify for FMLA leave to care for a spouse. An employee’s spouse is what is recognized in that state as a legal husband or wife. When one spouse falls ill, both the sick spouse and the spouse needed for care are entitled to a full 12 weeks of FMLA leave. An employer should take note that the term “needed to care” is broadly interpreted by the FMLA. For example, an employee may be entitled to FMLA leave when his or her presence with the ill parent, child or spouse is beneficial to recovery, but not particularly needed. An employee would be entitled to FMLA leave to spend time with a hospitalized spouse even though all of the patient’s physical needs are being provided for by the health care providers. Employee may also be entitled to FMLA leave to make arrangements for transfer in care. A serious health condition is a physical or mental condition that involves any period of incapacity or treatment connected with an overnight stay in a hospital or similar facility. A serious health condition is also any period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment or supervision of a health care provider. Continuing treatment or supervision by a health care provider for a chronic or long-term condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three calendar days, including prenatal care, is also a serious health condition.

To be entitled to FMLA leave, only qualified health care providers may provide certification of a serious health condition. Health care providers who qualify under the regulations to provide certification of a serious health condition for an employee or an immediate family member include:

- Doctors of medicine or osteopathy authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices; or,
- Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist) authorized to practice in the state and performing within the scope of their practice under state law; or,
- Nurse practitioners and nurse mid-wives authorized to practice under state law and performing within the scope of their practice as defined under state law; or,
- Christian Science practitioners listed with the First Church of Christ, Scientist in Boston,

What is a Serious Health Condition?
The FMLA defines a “serious health condition” as an “illness, injury, impairment or physical or mental condition” that involves either:
(i) Inpatient care in a hospital, hospice, or residential medical care facility; or
(ii) Continuing treatment by a health care provider.

The Department of Labor has implemented regulations which include an entire section (29 C.F.R. 825.114) to the definition of a “Serious health condition.” One reason employers sometimes still struggle with wondering if an employee has a serious health condition is because the regulatory definitions are relatively complex. Any given condition (say asthma, for example) might in some situations be considered a serious health condition, and in others would not. The following summarizes the regulatory guidance.

Absence Plus Treatment: A period of incapacity of more than 3 consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition), that also involves: (1) treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) 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 regimen of continuing treatment under the supervision of the health care provider. The incapacity for three consecutive days can include a day when the employee is not scheduled for work, if the employee is unable to perform regular daily activities on that day. Three full days of incapacity are required; partial days of incapacity three or more days in a row will not suffice to establish a serious health condition.

Pregnancy: Any period of incapacity (even if less than three days) due to pregnancy or for prenatal care (this includes severe morning sickness). Here again, incapacity means the inability to work or perform other regular daily activities.

Chronic Conditions Requiring Treatments: Any period of incapacity (even if less than three days) (or treatment for the incapacity) due to a chronic health condition which (1) requires periodic visits for treatment by a health care provider or by a nurse or physician’s assistant under direct supervision of a health care provider; (2) continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

Permanent/Long-term Conditions Requiring Supervision: Any permanent or longterm period of incapacity due to a condition for which treatment may not be effective (e.g., Alzheimer’s disease, a severe stroke, or the terminal stages of a disease such as cancer). The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider.

Multiple Treatments (Non-Chronic Conditions): Any period of ansence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment (e.g., chemotherapy or radiation treatments for cancer, physical therapy for arthritis, and dialysis for kidney disease).

Conditions that are not Serious Health Conditions
Below are some examples of conditions not constituting serious health conditions, unless in the particular circumstance the condition is severe enough to meet the above criteria for serious health conditions:
- Short term conditions for which treatment and recovery are very brief (such conditions would generally be covered by the employer’s sick leave policies).
- The common cold, earaches, upset stomach, minor ulcers, the flu, or headaches other than migraines.
- Routine dental or orthodontia problems, and other dental conditions such as periodontal disease.
- Conditions that are treated by someone who is not a “health care provider” as defined in the regulations. The continuing treatment component requires treatment by a health care provider, which is a defined term in the FMLA regulations. 29 C.F.R. § 825.118. A common area for dispute is chiropractors; chiropractors are defined as health care providers only if their treatment “consists of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.” No x-ray, no health care provider – no serious condition.
- Absence from work due to use of a controlled substance (as opposed to treatment for substance abuse). Note, however, that substance abuse may be a serious health condition if the conditions of “inpatient care” or “continuing treatment by a health care provider” are met.
- Conditions that are not serious enough to prevent the employee from working. To be eligible for FMLA leave, an employee with a serious health condition must be unable to perform the functions of his or her position due to serious health condition. This can be demonstrated by reviewing the above definitions of serious health condition, all of which require “incapacity” (inability to work) except for multiple treatments for a condition that would otherwise render the employee incapacitated (such as chemotherapy treatments for cancer). This is a common area of disputes - many conditions are such that some employees, in some positions, would be incapacitated, where other employees/ and/or employees in different positions, may not be incapacitated. Thus, an employee whose condition meets the statutory and regulatory definitions of “serious health condition” but who may still perform all of the essential functions of the job, will not be entitled to FMLA leave.

How Much Leave Does FMLA Allow?
The FMLA allows an employee to take leave for a period of up to 12 weeks during a 12- month period. The FMLA allows an employer to choose a uniform method of calculating the 12-week period from various alternatives. The alternative methods of calculating FMLA leave include using: (1) the calendar year; (2) any fixed 12-month period (e.g. a fiscal year or a year starting on an employee’s anniversary date); (3) a 12-month period measured forward from the date on which an employee’s FMLA leave begins; and (4) a rolling 12-month period measured backward from the date an employee’s first FMLA leave begins. FMLA allows employers to choose one of these alternatives, provided the alternative chosen is made known to employees and applied consistently to all employees.

The rolling method is beneficial to employers because it is the only method which clearly does not allow “stacking” of back to back leave entitlements. Under the rolling method, each time an employee takes FMLA leave, the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, if an employee has taken 8 weeks of leave during the past 12 months, he or she could take an additional 4 weeks of leave. If an employee used 4 weeks beginning February 1, 2004, 4 weeks beginning June 1, 2004, and 4 weeks beginning December 1, 2004, the employee would not be entitled to additional leave until February 1, 2005, at which time the employee would be entitled to 4 weeks of leave. Thereafter, the employee would be entitled to 4-week leave beginning on June 1 and December 1, 2005.

After choosing a computation method, if the employer wishes to switch to another alternative, it is required to give at least 60 days’ notice to all employees and the employees must still retain their full 12-week entitlement. The FMLA prohibits an employer from changing methods in order to avoid the Act’s leave requirements. During the running of the notice period, any employee who needs FMLA leave may use the option that provides the most beneficial outcome to that employee.

The regulations provide further reason for an employer to select a computation method and to provide notice to its employees of the method selected. If the employer fails to choose a method for computing the time or provide the employees with notice of the selected method, the option that provides the most beneficial outcome for the employee is to be used.

Is FMLA Leave Paid or Unpaid?
As a general rule, FMLA leave is unpaid. However, under certain circumstances, the FMLA permits an eligible employee to elect, or an employer may require the employee, to substitute accrued paid vacation, personal, or family leave for FMLA leave. If paid leave is used, the paid leave is concurrent with and not in place of the unpaid FMLA leave.

How Much Notice Must the Employee Give to Take FMLA Leave?
An employee must give 30-days’ notice to the employer of the need to take unpaid FMLA leave when it is foreseeable for the birth or placement of a child for adoption or foster care or for planned medical treatment. The regulations provide that if 30-days’ notice is not feasible, such as because of a lack of knowledge of approximately when the leave will begin, a change in circumstances or a medical emergency, the employee must provide notice as soon as practicable. The regulations state that it is expected that the employee will give notice within one to two working days of learning of the need for leave. In the situation where the employee fails to give 30-days’ notice for foreseeable leave with no reasonable excuse for delay, the regulations provide that the employer may deny the taking of FMLA leave until at least 30 days after the employee does provide notice, even if the employee does, in fact, have a serious health condition (although there are situations when an employer is required to make inquiry about an employee’s apparent condition).

Before an employer takes action against an employee for failure to provide the required notice, it must be clear that the employee had actual notice of the FMLA notice requirements. In most cases, this requirement would be satisfied by displaying the required poster in the workplace, including a section on FMLA in the employee handbook and by giving each employee written notice when FMLA leave is requested. It is good practice to obtain the employee’s signature on the notification and showing receipt of the employer handbook (both should be maintained in the employee’s personnel file).

What Constitutes Adequate Notice of FMLA-Qualifying Leave?
It is sufficient for an employee to provide verbal notice of the need for FMLA leave. Moreover, the employee need not expressly invoke his or her rights under the FMLA, or even mention the FMLA. Employees need only give their employers notice that they will be absent under circumstances which indicate that the FMLA might apply. Where the need for leave is unforeseeable, there is a trend in the latest federal court decisions to move away from a focus on whether a particular condition constitutes a serious health condition, and instead focus on whether the employer was properly put on notice that FMLA leave may apply. This is because most circuit courts require only that the employee’s initial notice indicate that his or her absence from work will be due to a potentially FMLA-qualifying reason.

So, for example, if an employee states that he unexpectedly needs time off from work due to bad headaches, and employment terminates because the employer refuses to provide leave, minimal evidence that his bad headaches were, in fact, a serious health condition will make the operative question (at least in terms of a pre-trial defense) whether the employer had sufficient notice of a potentially FMLA-qualifying reason for leave.

If the leave is for a medical condition, the notice must be sufficient to alert the employer to make further inquiries, if necessary, to determine whether the medical condition is protected under the FMLA. Simple notice that the employee is sick r in pain has been held insufficient to alert the employer that the employee needs time off for a serious health condition.

FMLA Military Leave Obligations
Following a 2008 law that extended FMLA-qualifying leave to certain eligible employees for reasons arising from a family member’s service in the military, the National Defense Act Authorization Act for FY 2010 (NDAA) further expanded the leave entitlements available to relatives of covered servicemembers.

Qualifying Exigency Leave
Prior to the 2010 NDAA’s enactment, eligible employees could take FMLA leave for qualifying exigencies because the employee’s spouse, son, daughter or parent was on active duty or had been notified of an impending call or order to active duty in support of a contingency operation. Among other things, the 2010 NDAA extended qualifying exigency leave to family members of servicemembers in the Regular Armed Forces, as the law previously only provided such leave to family members of servicemembers in the National Guard and Reserves. The 2010 law also added the requirement that the servicemember (National Guard, Reserves and Regular Armed Services) be deployed to a foreign country in order for qualifying exigency leave to be utilized by a covered family member.

The DOL’s final regulations also add a new category of qualifying exigency leave. Eligible employees are now entitled to “parental care leave” to care for a military member’s parent, which in many cases will be an in-law, who is incapable of self-care when the care is necessitated by the member’s covered active duty. Further, under prior law, employees could take up to five days of qualifying exigency leave to spend time with a military member on Rest and Recuperation; the new regulations extend that time to 15 days.

Military Caregiver Leave
Under the 2008 amendments to the FMLA establishing military caregiver leave law, cerI. Restoring An Employee After An FMLA Leave Concludes
At the end of an FMLA covered leave, the employer must reinstate the employee to his or her former position or "an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment." 29 U.S.C. § 2614 (a); 29 C.F.R. § 825.209(e). Upon an employee's return from FMLA leave, he or she is entitled to an equivalent position to that enjoyed prior to the start of leave: one virtually identical in terms of pay, benefits, privileges, perquisites and status. It must involve the same or similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority. 29 C.F.R. § 825.215. The definition of equivalent position is among the most litigated issues relating to the FMLA.

A. Return to Equivalent Position
To fulfill the provision of equivalent terms and conditions of employment, employees must be provided with the same conditions apparent in his or her original position: reinstatement to the same or a geographically proximate worksite (if original site is closed, the employee must be afforded the same rights as though he had not left prior to the closing of the worksite or the same rights as those employees that did not take leave), same work schedule, and the same opportunity for bonuses, profit-sharing, and other discretionary and non-discretionary payments.

While employers may offer an employee a different position, they cannot force an individual to take on a different position against that employee's will. Whenever possible, an employer should strive to return the employee to his or her original job.

If the employee is unable to perform an essential function of the position because of a physical or mental condition . . . the employee has no right to restoration to another position under the FMLA. 29 C.F.R. § 825.216(c). For example, in Jewell v. Reid's Confectionary Co., F.Supp.2d 212 (D. Me. 2001), a truck driver had a heart attack and had a defibrillator implanted in his chest. The state of Maine, therefore, suspended the employee's driver's license.

When the employee was cleared for work after his FMLA leave, he did not have a driver's license. Without his driver's license, the employee could not perform the essential function of his job – i.e. driving. Because the FMLA does not contain a reasonable accommodation provision, the employer was not required to reinstate the employee. This does not mean that the employee needs to have 100% capacity; it simply means that the employee needs to be able to perform the "essential functions" of the job. Duty v. Norton-Alcoa Proppants, 293 F.3d 481 (8th Cir. 2002).

Under the FMLA, an employer cannot require a returning employee to take a modified or light duty position. If the employee still has FMLA leave time remaining, the employee can choose to remain on leave. If the circumstances requiring FMLA leave may have rendered an individual unqualified for the position upon return from the leave, an employee must be allowed a reasonable opportunity to attend necessary courses, renew licenses, and attain a minimum number of flight hours, etc. in order to fulfill such obligations as to qualify for the position. Even if an employee is not entitled to reinstatement to an equivalent position under the FMLA, the employer still has obligations under the Americans with Disabilities Act and a state's workers' compensation laws. These topics should also be considered and are addressed in other sections of these materials.

B. Maintenance of Benefits
FMLA leave may be paid or unpaid. 29 U.S.C. § 2612(c). Moreover, an employer may require the employee to use paid time off as part of the FMLA leave. For example, an employer may require an employee to use accrued vacation, sick and personal time as part of the 12 weeks leave. If an employer chooses to do so, this policy needs to be clearly stated as part of the FMLA leave policy.

During the leave, an employer also must continue to provide group health insurance benefits to the employee on the same basis as if the employee was an active employee. 29 U.S.C. § 2614(c). The employer, however, is not required to provide health insurance coverage for any employee who, if actively employed, would not be eligible for coverage under the group health plan. 29 C.F.R. § 825.209. If an employer requires an employee co-payment when the employee is working, the employer can collect the same co-payment when the employee is on leave. One court has held that an employer's use of accrued vacation pay for an employee's health insurance co-payments does not violate the FMLA. Deily v. Waste Management of Allentown, 118 F.Supp.2d 539 (E.D. Pa. 2000). In contrast, an employer is not required to extend other benefits (e.g., life, disability, etc.) during the leave, but must reinstate such benefits upon return to work without requiring the employee to re-qualify for such benefits or subjecting the employee to any pre-existing condition, waiting period or physical examinations even if coverage lapsed during the FMLA leave due to the employee's failure to make premium payments. 29 C.F.R. § 825.212; § 825.213(f); § 825.215(d). If an employer establishes a health plan while an employee is out on FMLA leave, the employee become entitled to health benefits starting on the date when he would have otherwise become eligible if still on the job. If coverage options change during the time an employee is on FMLA leave, those options must be made available to the employee to the same extent that the options would have been made available if the employee was not on FMLA leave. In certain limited circumstances, if the employee fails to return to work after expiration of the required leave, the employer may recover the group health insurance premiums paid to maintain health insurance coverage. 29 C.F.R. § 825.213(a). The DOL regulations provide that an employer may terminate health insurance coverage if the employee fails to timely pay his/her share of any health insurance premium after a 30 day grace period. 29 CFR § 825.212. Such event will probably trigger the COBRA notice requirement. In addition, an employer's obligation to provide health insurance benefits to an employee on FMLA leave ends when (1) the employee informs the employer of the employee's intent not to return from FMLA leave, even if this occurs before the FMLA leave has started, (2) an employee terminates employment by failing to return from leave, or (3) the employee exhausts the FMLA leave allotment.

C. Benefits Upon Restoration
An employee returning from FMLA leave is entitled to any unconditional pay increases which may have occurred during the leave period and to be restored to a position with the same pay premiums as before he or she departed. For employees working in conditions where it is the employer's practice to grant pay increases based upon seniority, length of service, or work performed, in cases of 'leave without pay,' all pay increases are to be based upon these criteria excluding the prescribed period of unpaid FMLA leave.

Taking FMLA leave does not exclude employees from bonuses that they qualified for prior to taking their entitled leave of absence. In other words, if an employee met the requirements for bonuses prior to taking FMLA leave, they still have continued entitlement to seek such bonuses.

Employees are entitled to benefits - group life insurance, health insurance, disability insurance, sick leave, animal leave, educational benefits, and pensions - upon returning from FMLA leave equivalent to those made available by the employer at the time that leave began. Therefore, employers must act accordingly to modify benefits programs in order to restore equivalent benefits upon an employee's return so that employees do not have to re-qualify for those benefits enjoyed prior to taking leave. During instances of unpaid FMLA leave, employers are required to follow established policies when an employee desires to continue benefits for which he or she typically pays before FMLA leave begins. Benefits or seniority may be accrued during an unpaid FMLA leave. In addition, those benefits compiled prior to the start of FMLA - such as paid vacation, sick or personal leave not considering FMLA leave requirements - must be available when employees return from leave. Pensions and retirement plans are not hindered by FMLA leave. Unpaid FMLA leave does not count as a break in service and, therefore, does not limit or alter an employee's eligibility to participate in retirement or pension plans. The fact that an employee takes leave does not exclude him or her from changes in benefit plans. They are to be treated as if they continued to work and subject to the same extent of opportunities for benefits as though they had never left.

An employee has no further claim to the restoration of work beyond the equivalent of his or her position prior to taking leave. Furthermore, the only way that an employer may effectively deny an employee full restoration to a job is to demonstrate that the employee had, in fact, been laid off during the FMLA leave period. Upon proof of the termination of an employee and in the absence of continuing responsibilities under a collective bargaining agreement, all obligations by the employer to provide for group health plan benefits, continue FMLA leave, and restore the employee conclude. Filling a position or shift with another employee does not alleviate the obligations of the employer to restore an employee returning from FMLA leave to his or her original shift. However, if that shift is terminated or overtime hours have been limited since that employee’s departure on leave, he or she has no entitlement to work on that original shift or the overtime that no longer exists.

It is the right of the employer to refuse the restoration of an employee's position in three other specific circumstances: (1) an employee was hired for a discrete project and that project had since ended or the employment term had expired; (2) when the restoration of a salaried eligible employee threatens severe economic injury to the operations of the employer; and (3) if the employee has surpassed the allotted 12 week leave and is thereby no longer protected by FMLA (under this circumstance, employees must look to applicable worker's compensation statutes or ADA for other potential protections that may apply).

The FMLA provides a limited exception for certain "highly compensated" salaried employees. 29 U.S.C. § 2614(b). Specifically, the exception applies if:

a. The individual is among the highest paid 10% of employees of the employer working within a 75-mile radius of the facility;
b. The denial of reinstatement is necessary to prevent "substantial and grievous economic injury" to the employer's operations;
c. The employer notifies the employee of its intent to deny reinstatement as soon as the employer determines that economic injury would occur; and
d. The employee elects not to return to work after receiving notice. 29 U.S.C. § 2614(b).

II. Intermittent Leave/Reduced Schedule Leave
One of the most difficult (and frustrating) provisions of the FMLA for employers in practice is the requirement to provide employees with intermittent and/or reduced schedule leave. When an intermittent or reduced schedule leave must be allowed and how to logistically manage such a leave are frequent issues faced by supervisors and human resources employees. The text below attempts to answer some of the more frequently asked questions concerning this area.

A An Overview of Intermittent Leave/Reduced Schedule Leave
When medically necessary, employees do not have to take leave in single blocks of time. Instead, the FMLA provides that, in certain cases, employees may take intermittent or reduced schedule leave. 29 U.S.C. § 2612(b). For intermittent or reduced schedule leave, the leave must be (1) medically necessary, either due to the employee’s condition or a family member’s condition, (2) due to a service member family leave; or (3) due to covered active duty of a family member. Notable exclusions from the types of leave that can be taken intermittently or on a reduced schedule are leaves taken due to the birth or adoption of a child. In those circumstances, the leave may not be taken intermittently or on a reduced leave schedule unless the employer agrees to such schedule.

Examples of intermittent leave include but are not limited to the following: leave to be taken on an occupational basis for medical appointments, physical therapy, prenatal exams, or even morning sickness. Intermittent leave may also be taken to provide care or psychological comfort to an immediate family member with a serious health condition. For example, in one case, a court held that a diabetic employee who sometimes needed to sit down and eat or leave his workstation to buy food in the company cafeteria could be entitled to intermittent FMLA leave if he could show that it was medically necessary for him to leave his workstation before his scheduled break time. Collins v. The United States Playing Card Co., 466 F.Supp.2d 954 (S.D. Ohio 2006). If a leave is taken to care for an ill family member or due to the employee's personal illness, leave may be taken -- without the employer's prior authorization – when "medically necessary." 29 U.S.C. § 2612(b).

Intermittent leave may be taken in separate blocks of time, ranging from one hour or more to several weeks, on account of a single illness or injury. Moreover, it may be taken in any increment of time that fits in with the employer's payroll system. Employers can limit leave increments to the shortest period of time that the employer's payroll system uses to track absences, provided it is one hour or less. As a result, if an employer can track intermittent leave in 15 minute increments, then it may be required to do so.

Reduced schedule leave is leave that reduces an employee's regular work hours per workweek or workday. Normally, it is a change from a full-time schedule to a part-time schedule. For example, an employee recovering from a serious health condition could take reduced leave as he or she recuperates. During the period of recovery, for instance, the employee’s health care provider may certify that the employee can only work four days a week.

An employer may still request certification from an employee for an intermittent or reduced schedule leave. The type of certification will differ depending on the circumstances. In the case of certification for planned medical treatment, then the employer can request the dates on which such treatment is expected and the expected duration of the treatment. For a health condition that renders the employee unable to perform the functions of his or her position, the employer that can request certification of the medical necessity for the leave and the expected duration of the leave. With respect to the care of a family member’s serious health condition, the employer can request certification that the leave is necessary for the employee to care for or assist with the recovery of the family member, and the expected duration and schedule of the intermittent or reduced schedule leave. 29 U.S.C. § 2613(b)(5)-(7).

The employer may require employees on reduced or intermittent leave to transfer to available alternative positions on a temporary basis with equivalent pay and benefits which better accommodate recurring periods of leave than the regular position of the employee. 29 U.S.C. § 2612(b)(2). Significantly, the alternative position must provide equivalent pay and benefits, but it does not need to have equivalent duties. That said, when transferring an employee, an employer cannot seek to discourage the employee from taking the FMLA leave. Examples of situations that may be deemed discouraging would include assigning a white collar office worker to perform laborer's work as an alternative position, assigning an employee, who previously only worked the day shift, to work the graveyard shift that, or assigning an employee, who normally worked at corporate headquarters, to a far flung branch office.

As noted above, intermittent and reduced schedule leaves have been problematic for employers in implementing FMLA. Often, requests for time off for medical appointments or treatments are not recognized as triggering obligations under FMLA. Also, job transfers and reduced schedules must be assessed under the Americans with Disabilities Act (ADA) and the implications of granting such transfers and reduced schedules must be evaluated for their ramifications in other contexts.

Notwithstanding the logistical and substantive frustration associated with managing intermittent or reduced schedule leaves under the FMLA, employers cannot require employees to take more leave that necessary to accommodate the leave. This is true even if it would be preferable or more convenient from the employer’s perspective to do so. Also, only time actually taken for leave can be charged against the employee's entitlement. In connection with this limitation, employers cannot require leave to be taken in increments of more than one hour.

For example, an employer cannot require an employee to take the whole day off for FMLA leave if the employee only has a two-hour medical appointment. Finally, exempt employees can be docked for unpaid partial-day or partial week FMLA absences. The law is clear that providing unpaid FMLA leave to exempt employees and deducting their pay for hours taken as intermittent or reduced FMLA leave within a workweek does not affect the exempt status of such employees. Docking pay, however, only applies to FMLA leave. An employer cannot dock pay for leave that does not qualify as FMLA.

B. Tracking the Twelve (12) Month Period
Employers are allowed to choose between one of four different methods of tracking an employee's 12 week leave period. Those methods are as follows:
1. the calendar year;
2. any fixed 12 month period;
3. the 12 month period measured forward from the date the employee's first
FMLA leave begins ("roll forward"); or
4. a "rolling" 12 month period measured backward from the date an employee uses any FMLA leave ("roll backward").

The employer should choose one method and apply it consistently and uniformly to all employees, except when an employer has employees in different states and therefore may need to comply with different state restrictions. 29 C.F.R. § 825.200. If an employer wants to change to an alternative calculation method, then it is required to give at least 60-days of notice to all employees, and the transition must take place in a way that the employees retain the full benefit of the 12 weeks of leave.

An intermittent or reduced leave schedule for a non-full time employee alters the tracking practice slightly. If an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled. 29 CFR § 825.205. Where an employee normally works part-time or a variable schedule, the amount of leave is determined on a proportional basis by comparing the employee’s new schedule with the employee's normal schedule. 29 CFR § 825.205. In calculating leave, the focus must be on the employee's normal workweek (not necessarily the number of hours worked in a week). To illustrate this point, here are a couple examples:
1. Employee A worked 40 hours per week (5 days, 8 hours a day) and needs one day of intermittent FMLA leave each week for six months. Employee A will take one day, or 20% of the workweek each week. Assuming Employee A has 12 weeks of FMLA leave when she begins (and takes no other FMLA leave), in six months Employee A would have taken 5 1/5 workweeks of FMLA leave (26 work days), leaving 6 4/5 workweeks of FMLA leave remaining.

2. Employee B works 34 hours per week, Monday through Friday, takes leave from Tuesday, February 8 through Tuesday, March 7, using 4 1/5 workweeks (21 workday days) of FMLA leave. Employee B uses 4/5 of a workweek for February 8-11, 3 full workweeks for February 14 - March 3, and 2/5 of a workweek for March 6 and 7. If later in the year, Employee B needed additional FMLA leave, he would still be entitled to 7 4/5 workweeks of FMLA leave. If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement. 29 CFR § 825.205(b)(3).

C. Recordkeeping
The FMLA requires employers to make, keep and preserve records pertaining to their compliance with the law in accordance with Department of Labor regulations. 29 U.S.C. § 2616 (b); 29 C.F.R. § 825.500. These regulations require the employer to keep records which disclose the following:

(1) Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid.
(2) Dates FMLA leave is taken by employees (e.g., available from. time records, requests for leave, etc. if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave provided under State law or an employer plan which is not covered by FMLA.
(3) If FMLA leave is taken in increments of less than one full day, the hours of the leave.
(4) Copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all general and specific notices given to employees as required under FMLA and these regulations (e.g., copies may be maintained in employee personnel files).
(5) Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
(6) Premium payments of employee benefits.
(7) Records of any dispute between the employer and an employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement. 29 C.F.R. § 825.500(c). Such records must be maintained for no less than three (3) years, and are subject to inspection, copying and transcription by representatives of the United States Department of Labor. 29 C.F.R. § 825.500(b).

The regulations also provide that records and documents relating to medical certifications, re-certifications, or medical histories of employees or employees' family members must be maintained in separate files and treated as confidential materials with access limited to those authorized by law. 29 C.F.R. § 825.500(g). The law also requires employers to post notices of the FMLA's requirements. 29 U.S.C. § 2619.
ain family members were entitled to 26 workweeks of FMLA leave in a single 12-month period to care for a covered servicemember with a serious injury or illness incurred in the line of duty on active duty for which the servicemember was undergoing medical treatment, recuperation, or therapy. The NDAA revised the definition of “covered servicemember” to add veterans, provided they were a member of the Armed Forces at any time during the five-year period preceding the date of the medical treatment, recuperation, or therapy. Importantly, the final regulations state that the period between their effective date and enactment of the NDAA on October 28, 2009, does not count for purposes of determining the five-year period for covered veteran status.

The regulations also clarify that, for a veteran, an injury or illness that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty may constitute a “serious injury or illness” in certain situations. The final regulations similarly expand the definition of a “serious injury or illness” for current servicemembers, but without the limitations applicable to veterans.

The final regulations clarify that, with respect to military leave, FMLA certifications can be signed by any health care provider who is authorized to certify a FMLA medical certification form for other FMLA-qualifying reasons.

The DOL also has replaced the previous prototype FMLA medical certification and notice forms with a note that such forms should be obtained directly from the DOL website or a local office. Thus, in the future, the DOL will not need to issue new regulations each time it changes the required certification forms.

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