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FMLA What to Do Now

August 1, 1998
Related Topics: Employee Leave, Featured Article
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While the politicians work on the future of FMLA, the best thing HR professionals can do for their companies is ensure they?re in line with the current regulations. Here, Dana Connell, a partner at the Chicago office of employment law firm Littler Mendelson, offers advice on the two most difficult FMLA areas.

Definition of serious health condition
In its final rule, the Department of Labor expanded the categories that constitute a serious health condition. Basically, what you have to do to determine whether [an illness is considered a serious health condition] is look at it three different ways.

  1. Look at whether it?s inpatient care. If it is, it qualifies.
  2. Is it a period of incapacity of more than three consecutive calendar days in which the employee either has treatment by a health-care provider twice or treatment once and a regimen of continuing treatment?
  3. The third category is specifically protected situations the DOL has decided to protect, even though they don?t involve inpatient care or more than a three-day absence. These include pregnancy, prenatal absences like morning sickness (for which a doctor?s slip is unnecessary), chronic conditions like asthma, diabetes and epilepsy, permanent long-term conditions or multiple-treatment conditions.

Intermittent leave
Employers need to remember they have more rights on this than they think they have. The employee needs to show a medical need for intermittent or reduced leave. If employers use the form the Department of Labor suggests for medical certification -- form WH380 -- it has a box on it in which the doctor will indicate whether the condition calls for intermittent leave.

You do have the right to transfer the individual to an alternative position under section 204 of the final rule. The position has to have equivalent pay and benefits, but not equivalent duties. Another thing to keep in mind: If it?s a situation involving the birth of or adoption of a child, the employer doesn?t have to grant intermittent leave. If someone wants to take a pregnancy leave and return on a reduced schedule, the employer doesn?t have to grant that.

Workforce, August 1998, Vol. 77, No. 8, p. 40.

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