Can We DO That?! FMLA Q & A

Also known as the Friday and Monday Leave Act, these are just a few names affectionately (not) given to the acronym for the Family and Medical Leave Act. Know some others? Click here to share and I'll publish them in next month's newsletter.  

So why does the FMLA continue to be so challenging for covered employers? To begin with, just consider the definition of a covered employer. It's not just simply an employer with 50 or more employees, nor an employer with 50 or more employees for 20 or more weeks.  A covered employer is one that has employed "50 or more employees for each working day during 20 or more calendar work weeks in the current or the preceding calendar year."  So if an employer met that definition through May 2013 but then had a reduction in force and has employed less than 50 employees since then, that employer would still be an FMLA covered employer through December 31, 2014. On the flip side, when an employer hires its 50th employee it will have at least 20 work weeks to come into compliance with the FMLA, if not more, depending upon when in the calendar year that 50th employee was hired.

In the last month I've received a number of FMLA-related questions. Since one person asked, I suspect these may resonate for others.

Q: Does an employee who is on FMLA for the birth of his or her child have the right to take leave intermittently or is this at the discretion of the employer?

A: If the leave is not medically required, such as to care for a child newly born with a disability or adverse medical condition then the employer may require the employee to take the leave all at once.  Section 825.120(b) of the regulations reads in part, "An eligible employee may use intermittent or reduced scheduled leave after the birth to be with a healthy newborn child only if the employer agrees."

Q: If an employee's FMLA leave starts before the employee is eligible but continues after the employee becomes eligible what portion of the leave, if any, is FMLA covered?

A: It may depend upon whether the employee is ineligible when the leave began because of the length of service requirement (total of 12 months) or hours worked requirement (1,250). Section 825.110(b)(3) provides, " If an employee is maintained on the payroll for any part of the week including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.) the week counts as a week of employment. Section 825.110(d) of the regulations provides, "An employee may be on 'non-FMLA leave' at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA qualifying reason after the employee meets the eligibility requirement would be 'FMLA leave.' ''

Q: If an employee is taking intermittent FMLA leave that is disruptive to business operations can I temporarily transfer the employee to another position?  If so, do I have to pay the employee the same rate of pay if the temporary position pays less? 

A: Yes, you may temporarily transfer the employee to another position.  You must also continue to pay the employee his or her regular rate of pay. 

Q: What if an employee also needs light duty in addition to intermittent or reduced schedule leave, must an employer provide light duty? 

A: We often see issues related to the Americans with Disabilities Act (ADA), which covers employers with 15 or more employees overlap and run concurrent with FMLA issues.  The answer to this question would be "Yes" under the ADA so long as the light duty position was a "reasonable" accommodation. The FMLA regulations provide no express, affirmative obligation on the part of the employer to create or provide a light duty role.  If one is available, however and your employee works the light duty job the time spent working in the light duty job is not counted as part of the employee's FMLA leave, even thought the employee is technically absent from or not performing his or her regular job.

Some other issues addressed by the courts in recent months have included:

1. Can an employer require an employee to submit to a fitness for duty exam before returning to work from FMLA leave? (the answer might surprise you)
2. If an employee is otherwise eligible but does not want an absence to be counted as FMLA covered leave can the employer require the employee to use FMLA leave?
3. If the employer fails to provide the employee with the required Notice of Eligibility and Rights or the Designation notice to what penalties, damages or fines might the employer be subject?  

Want the answers to the above and more?  Join FiveL Company's June 25th webcast, "FMLA In the News: What's Hot and What's Not." Click here for more information. 

Want to hear more?  Attend related sessions at SHRM’s 2014 Annual Conference & Exposition with me and Eric B. Meyer.