The FMLA in Practice

The Family and Medical Leave Act (FMLA) was enacted in 1993 and entitles eligible employees of employers covered under it to take unpaid, job-protected leave for specific family and medical reasons. During this leave, group health insurance coverage continues under the same terms and conditions applicable if the employees had not taken leave.

You may access the latest rules covered under the FMLA at the following Web site:

• U.S. Department of Labor. (n.d.) Wage and Hour Division (WHD): Family Leave and Medical Act. Retrieved from http://www.dol.gov/whd/fmla/

In this assignment, you will analyze the FMLA policy of an organization to understand the policy’s role and importance in employee management.

Tasks:

Click

here

to access and read a portion of the employee handbook of Widgets Inc. that outlines the company’s FMLA policy statement. Analyze the handbook on the basis of FMLA guidelines. Identify a minimum of five errors or oversights that relate to the FMLA and list their solutions in a separate document.

In addition, in the same document, include answers to the following questions:

• What are three alternative methods of calculating twelve weeks of leave within a twelve-month period? Which method do you believe is the best and why?
• An employee should give as much notice as possible to his or her employer. The Department of Labor suggests a minimum notice of thirty days. What if an employee needs emergency FMLA leave? Is the employee still allowed to take FMLA leave, although he or she was unable to give the thirty-day notice?
• What are the legal ramifications if the same position is not available to an employee on his or her returning from FMLA leave?
• During an employee’s FMLA leave, Widgets Inc. downsizes and closes the department in which the employee works. What will happen to the employee? What are the legal ramifications?

Leave Under the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) provides eligible employees with up to 8 workweeks of unpaid leave for certain family and medical reasons during a 6 month period. During this leave, the employee is entitled to continued group health plan coverage as if the employee had continued to work. At the conclusion of the leave, the employee, subject to some exceptions, generally has a right to return.

Employee Eligibility Criteria

To be eligible for the FMLA leave, an employee must have been employed by the Company:

· For at least twelve months (which need not be consecutive)

· For at least 90 days during the twelve-month period immediately preceding the commencement of the leave

· At a work site with fifty or more employees or where fifty or more employees are located

Events That May Entitle an Employee to the FMLA Leave

The FMLA leave may be taken for any one, or for a combination, of the following reasons:

· A “serious health condition”

· The birth of a child

Limitations of the FMLA Leave

Leave to care for a newborn or for a newly placed child must conclude within twelve months after the birth or placement of the child.

When both spouses are employed by the company, they are together entitled to a combined total of twelve workweeks of the FMLA leave within the designated twelve-month period for the birth, adoption, or foster-care placement of a child with the employees, for aftercare of a newborn or a newly placed child, and to care for a parent (but not in-law) with a serious health condition. Each spouse may be entitled to an additional FMLA leave for other FMLA qualifying reasons (that is, the difference between the leave taken individually for any of the above reasons and twelve workweeks, but not more than a total of twelve workweeks per person).

For example, if each spouse took six weeks of leave to care for a newborn child, each could later use an additional six weeks of leave due to his or her own serious health condition or to care for a child with a serious health condition.

An Intermittent or a Reduced Work Schedule Leave

Intermittent leave is leave taken in separate blocks of time. Reduced work schedule leave is a leave schedule that reduces an employee’s usual number of hours per workweek or hours per workday.

If an employee takes leave intermittently or on a reduced work schedule basis, the employee must, when requested, attempt to schedule the leave so as to not disrupt the company’s operations unduly. When an employee takes an intermittent or a reduced work schedule leave for a planned medical treatment, the company may temporarily transfer the employee to an alternative position with the equivalent pay and benefits for which the employee is qualified and which better accommodates the recurring periods of leave.

Requests for the FMLA Leave

An employee should request for the FMLA leave by completing the Employer’s Request for Leave form and submitting it to the HR department.

When a leave is foreseeable for childbirth, for the placement of a child, or for the planned medical treatment for the employee’s or his or her family member’s serious health condition, the employee must provide the company with at least thirty-days notice in advance or a shorter notice that is practicable (that is, within one or two business days of learning of the need for the leave). When the timing of the leave is not foreseeable, the employee must provide the company with the notice of the need for leave as soon as practicable (that is, within one or two business days of learning of the need for the leave).

Required Documentation

When a leave is taken to care for a family member, the Company may require the employee to provide documentation or a statement of family relationship (that is, a birth certificate or a court document).

An employee may be required to submit a medical certificate from a health-care provider to support a request for the FMLA leave for his or her or a family member’s serious health condition

If the Company has a reason to doubt an employee’s initial certification, the Company may (i) obtain the employee’s permission and have a designated health-care provider contact the employee’s health-care provider in an effort to clarify or authenticate the initial certification and/or (ii) require the employee to obtain a second opinion by an independent company-designated health-care provider at the Company’s expense. If the initial and second certifications differ, the Company may, at its expense, require the employee to obtain a third, final, and binding certification from a jointly selected health-care provider.

During the FMLA leave, the Company may request the employee to provide recertification of a serious health condition at regular intervals in accordance with the FMLA. In addition, during the FMLA leave, the employee must provide the Company with the periodic reports regarding his or her status and the intent to return to work. If the employee’s anticipated return-to-work date changes and it becomes necessary for the employee to take more or less leave than originally planned, the employee must provide the Company with a reasonable notice (that is, within two business days) of his or her changed circumstances and the new return-to-work date. If the employee gives the Company the notice of his or her intent of not returning to work, the employee will be considered to have voluntarily resigned.

Before the employee returns to work from the FMLA leave taken for his or her own serious health condition, the employee may be required to submit a fitness-for-duty certification from his or her

healthcare provider, with respect to the condition for which the leave was taken, stating that the employee is able to resume work.

The FMLA leave or a return-to-work date may be delayed or denied if the appropriate documentation is not provided in a timely manner. Also, a failure to provide the requested documentation stating the reason for an absence from work may lead to the termination of employment.

Use of Paid and Unpaid Leaves

The FMLA provides eligible employees with up to twelve workweeks of unpaid leave. If an employee has accrued paid leave (a vacation, a sick leave, or a personal leave), the employee may use any qualifying paid leave first. “Qualifying paid leave” is leave that would otherwise be available to the employee for the purpose for which the FMLA leave is taken. The remainder of the twelve workweeks of leave, if any, will be the unpaid FMLA leave. Any paid leave used for an FMLA qualifying reason will be charged against an employee’s entitlement to the FMLA leave. This includes leave for disability or for workers’ compensation injury/illness, provided that the leave meets the FMLA requirements. The substitution of a paid leave for an unpaid leave does not extend the leave period of twelve workweeks.

Designation of Leave

The Company will notify the employee that the leave has been designated as the FMLA leave. The Company may provisionally designate an employee’s leave as the FMLA leave if the Company has not received medical certification or has not otherwise been able to confirm that the employee’s leave qualifies as the FMLA leave. If the employee has not notified the Company of the reason for the leave and the employee desires the leave to be counted as the FMLA leave, the employee must notify the HR department within two business days of his or her return to work that the leave was for an FMLA reason.

Maintenance of Health Benefits

During the FMLA leave, an employee is not entitled to continued group health plan coverage under the same conditions as if the employee had continued to work.

Return from the FMLA Leave

On returning from the FMLA leave, the Company will place the employee at the same position the employee held before the leave or at an equivalent position with the equivalent pay, benefits, and other employment terms.

Limitations on Reinstatement

An employee is entitled to reinstatement only if he or she would have continued to be employed had the FMLA leave not been taken. Therefore, an employee is not entitled to reinstatement if, because of a layoff, a reduction in force, or any other reason, the employee would not be employed at the time job restoration is sought.

The Company reserves the right to deny reinstatement to the salaried, eligible employees who are among the highest paid 10 percent of the Company’s employees employed within 75 miles of the work site (“key employees”) if such denial is necessary to prevent the substantial and grievous economic injury to the Company’s operations.

Failure to Return to Work following the FMLA Leave

If the employee does not return to work following the conclusion of the FMLA leave, the employee will be considered to have voluntarily resigned. The Company may recover the health insurance premiums that it paid on behalf of the employee during any unpaid FMLA leave except that the Company’s share of such premiums may not be recovered if the employee fails to return to work because of his or her or a family member’s serious health condition or because of other circumstances beyond the employee’s control. In such cases, the Company may require the employee to provide medical certification of his or her or the family member’s serious health condition.

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MS6018_ Employment Law and Public Policy

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