irst,a brief overview of the law.
Whenthe FMLA applies
Any company or organizations with 50 or more employees within a 75-mile radiusis subject to the provisions of the Family and Medical Leave Act (FMLA). TheFMLA provides eligible employees with up to 12 weeks of unpaid leave during a12-month period so that employees can attend to serious medical conditions, beavailable for the births or child adoptions, or to care for a parent, spouse orchild who requires serious medial attention.
It is important to note that not all employees are eligible for FMLAleave. For example, only employees who have worked for a company for at least 12months, and have worked for at least 1,250 hours with that employer during theprevious 12-month period, may request leave.
An important provision of the FMLA is that it guarantees that -- after takingFMLA leave -- an employee will be able to return to his or her position, or anequivalent one. Also significant is that FMLA may be taken intermittently,instead of all at once, in some circumstances.
These issues present a real challenge to employers who must determine when leaveis appropriate. Intermittent leave may, for example, make it more difficult foran employer to track employee attendance and enforce disciplinary measures ifabuse is suspected.
In order to appropriately assess whether an absence is FMLA-related, HR musttake steps to understand the reasons for an employee's medically-relatedabsence. The issue becomes increasingly complicated if the "serious healthcondition" that is the basis for the leave evolves into a disability. Underthose circumstance, an employer may be required, under the Americans withDisabilities Act (ADA) to provide, as an accommodation, time off in excess ofthe 12-week FMLA leave. The question then becomes whether or not the leaverequested presents an undue hardship to the company.
DOLregulations and the FMLA
The Department of Labor (DOL) issues "guidelines" to employers on howto properly comply with FMLA. Though these guidelines do not have the force oflaw, they are generally referenced by courts interpreting and enforcing thatAct. However, a number of recentlegal decisions have criticized the DOL for issuing guidelines that revise theotherwise clear language of the FMLA and that, in effect, extend theentitlements granted under the FMLA.
The regulations addressed by federal appeals courts both deal with employersnotifying employees once the employees have requested leave. The firstregulation automatically entitles employees to 12 additional weeks of leave iftheir employer fails to designate requested leave as FMLA leave. The secondregulation entitles any employee who requests leave and is not informedof ineligibility for FMLA leave to automatic eligibility under the FMLA.
Theinformation contained in this article is intended to provide useful informationon the topic covered, but should not be construed as legal advice or a legalopinion. Also remember that state laws may differ from the federal law.