One of the challenges of administering leave that falls under Family and Medical Leave Act (FMLA) is that occurrences come up only occasionally and thus raise questions about how to get it right. In Part 1 we looked at the basics of the law; in Part 2 we added additional important requirements to keep in mind. Here, we look at a few interesting scenarios you might face so you can be ready when they arise:
1. What happens when a company holiday falls within an employee’s FMLA leave period? Does it count as holiday time or FMLA leave time?
If the employee has the full week off in which the holiday occurs, the entire week is counted as FMLA. However, if the employee is taking leave in smaller than one week increments, the holiday doesn’t count against the employee’s FMLA entitlement (unless the employee was otherwise scheduled and expected to work on the holiday.)
Similarly, if employees are not expected to report for work for one or more weeks (for example, school vacations or manufacturing plant closings) the days the employer is closed do not count against the employee’s FMLA leave entitlement.
2. How do you handle the birth or adoption of a child when both the mother and father work for you? The law says that the 12 weeks of leave entitlement for the birth/adoption/foster care placement of a child is divided between a married couple so that the combined total time taken by your two employees for that qualifying event is 12 weeks. It may be taken in any combination the couple chooses and can be simultaneous or consecutive.
But what if the couple is not married? The law is silent regarding unmarried couples, including same sex couples, so they are treated as individuals and must be provided with up to 12 weeks each! This legal quirk may become more of an employee relations headache for you in the disparate treatment of married vs. unwed couples who work for you: approximately 40% of American children are born out of wedlock these days.
3. What if a grandmother or grandfather requests FMLA leave to care for a seriously ill grandchild? An important administrative interpretation of came about in 2010 which expands the definition of son or daughter to ensure that employees who assume the role of caring for a child receive parental rights to family leave regardless of the legal or biological relationship. The role is referred to as in loco parentis which means in place of the parent. Also note that a child having a biological parent in the home, or having both a mother and a father, does not prevent a finding that the child is the “son or daughter” of your employee for purposes of taking FMLA leave. The regulations do not restrict the number of parents a child may have under the FMLA.
Here are some examples:
An employee provides day-to-day care for his unmarried partner’s child with whom there is no legal or biological relationship.
A child’s biological parents divorce and each parent remarries. The child is considered the “son or daughter” of both biological parents and both stepparents.
A grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care.
Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward,) but no such relationship is required to find in loco parentis status. If you question whether an employee’s relationship to a child is covered under FMLA, you may require the employee to provide reasonable documentation or a statement of the family relationship. A simple statement asserting that the required family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.
4. What happens if an employee cannot or does not return to work after their FMLA leave is used up? The FMLA provides for job protection through the employee’s leave entitlement period so the employee has a right to their former, or an equivalent, position upon return. But the protection does not go beyond their 12-week allotment so you may be able to discipline or terminate the employee for failing to return to work. Communication is important. Be sure you have communicated in writing the date you expect the employee to return. If the employee does not return, let him or her know in writing that you consider the absence to be unexcused and that (s)he will be disciplined/terminated.
As always with serious employment actions, however, be very careful. An employee’s serious illness or injury may very well qualify the person as disabled and thus protected under the Americans with Disabilities Act. If so, you may have to consider additional time off or a return to work part-time if it is a “reasonable accommodation” and would not create an undue hardship for your organization and, under the ADA, the person must be returned to the same job, not just an equivalent one. It’s helpful for employers to know that, as a general rule, time off of an indefinite nature is not considered reasonable.
Of course there are always more scenarios that arise. The best thing is to do your homework. The DOL website is a great source of information. And for subscribers to HRSentry, all the resources you need to get HR compliance right are at your fingertips.
A Florida law firm, Elizabeth R. Wellborn PA, recently fired 14 workers for wearing matching orange shirts to work according to the Sun Sentinel. According to the article, an executive of the firm had gathered that wearing the shirts represented a form of protest and questioned them about it. The employees denied any protest motive, some claiming they simply wanted to look like a group when they went to happy hour after work. After questioning the employees, the executive conferred with others and the employees were summarily fired.
There are a few HR issues embedded in the story:
“At will” employment is based on the concept that an employment relationship is voluntary on both sides and thus can be terminated be either party for any reason, a bad reason or no reason at all (aside from an illegal one such as discrimination) with or without notice. Florida is an at will state and, it seems, mode of dress is not legally provided for except upon religious or other protected grounds. So it appears, without further information, that the law firm acted within its legal rights.
It’s a bit ironic that, had the employees not denied the protest motive and had instead indicated that wearing the shirts was to protest their working conditions, their act would have been protected by the National Labor Relations Act (NLRA.) Under the NLRA, employees have the right to engage in concerted activity for their mutual aid and protection in relation to their working conditions. Presumably the law firm executives would have known this and not fired them.
The third issue is not legal but one of employee relations. Many organizations these days are focusing on the concept of improving employee engagement and trying to become an employer of choice. It seems the firings at Elizabeth R. Wellborn, PA will run counter to both ideas. Fear of firing is not a good motivator, at least beyond the short term. It’s also a distraction that will interfere with worker morale and engagement. The bad publicity will likely make recruiting tougher for this firm. And, given the potential anger other employees may harbor over the incident, this firm may become fertile ground for a unionization campaign.
There may be more to the situation than the Sun Sentinel article reveals and perhaps time will tell. In the meantime, it appears that the human resources job at that firm just got a lot tougher.
About the Author: Kyle Lagunas is the HR Analyst at Software Advice—an online resource for talent management software buyers guides and more.
In a world where some of the more innovative technologies are evolving at the consumer level before trickling up to the enterprise, it comes as no surprise that even entry-level employees have access to powerful tools, applications and networks in their personal lives. What is surprising many organizations is how these same technologies have begun infiltrating the workplace. For human resources professionals, the effects are hard to miss. From employee and manager self-service portals to the growing number of social media elements in performance and learning management, the technology employees expect to find in the workplace is changing.
But how will this shift–the consumerization of IT–impact the way an organization recruits, engages and manages its workforce? What opportunities and challenges does it present to human resources?
I’ve invited a few industry thought leaders to weigh in.
According to a survey conducted by Avanade, 73% of executives consider the consumerization of IT a top priority, and 79% will make new investments in embracing this trend in 2012. What factors are driving this?
Grossman: It’s all about improving efficiencies, reducing redundancies and increasing productivity and revenue. For example, lowering annual equipment expenditures by offering allowances for employees to buy their own devices for both business and personal use. Also providing self-service access to all sorts of internal systems for both employees and managers can make for a more adaptable organization regardless of size. IT itself has struggled with this loss of gatekeeper control, but the sound fiscal results are changing the hearts and minds of the C-suite.
There’s a widely-held view that access to consumer technology (social media, the Internet, mobile apps) will offer too many distractions, and negatively impact productivity. Do you agree or disagree?
Calamai: Though I sometimes share the concerns of my baby boomer cohorts, I’m convinced that those who use and embrace these technologies are equally adept at both determining what’s useful in the workplace, and—as importantly—can navigate between personal and professional use. I don’t think we give the Millennials enough credit for that ability to navigate. They’re not waiting for boards to regulate social networking. They’re using common sense and good business sense to do that—which is pretty encouraging.
Where is the greatest opportunity for Human Resources to embrace the consumerization of IT in their organization? Recruiting? Learning and development? Performance management?
Fulton: We need to make sure that the systems we use to drive recruiting and attraction, talent management and performance management are stepping forward into the modern era. It’s not that they have to look cool. More importantly, if people are able to do talent management tasks in a simple and elegant way, it saves them time and keeps the focus and the substance of the conversation where it should be–on employees relating to each other.
Last week, we looked at the basics of FMLA. The law itself seems straight forward enough; so why is administering FMLA such a headache? Well, there are many different administrative aspects, many situations that don’t come up every time, many types of events that qualify, and other laws that overlap, so keeping track of how to do things right becomes a challenge. Let’s build on the basics by looking at some common questions.
Who qualifies for FMLA leave? When calculating whether someone has at least one year of service with your organization, understand that a person’s prior service does not have to have been consecutive. Keep in mind when rehiring former staff that you have to count prior service unless the person had more than a seven year break in service unless the break was to fulfill the employee’s National Guard or Reserve military obligations. Also, remember that to be covered, the employee needs to have worked at least at least 1250 hours during the past year.
How are the employee’s job and benefits protected? When an employee returns from FMLA leave, they must be given their original job back or one with equivalent pay, benefits and other terms and conditions of employment. You have to keep their health benefits intact while they are gone (they need to reimburse you for the employee portion of any premium) but you don’t have to give them a bonus based achieving certain results or hours worked while they were out on leave. If someone doesn’t return from leave, you may be able to get reimbursed for health premiums you paid on their behalf.
How does the employer designate the leave as FMLA? The employee is supposed to give you 30 days’ notice if the leave is foreseeable or as soon as practicable otherwise. They must provide sufficient information so you can determine whether the FMLA applies. If it does, you must notify the employee of whether or not (s)he is eligible and what his/her rights and responsibilities are under the law. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave will be counted as FMLA leave. Employers have the option to use forms Department of Labor (DOL) forms WH-381 and WH-382 to meet these notification requirements.
How do I know if the employee or family member truly has a serious medical condition? You may require that a request for leave due to the employee’s or family member’s serious health condition be supported with a certification from a health care provider. You may even require second or third medical opinions, at your expense, and periodic re-certification of an ongoing condition. The employee’s direct supervisor cannot be the one to authenticate or get clarification of the medical certification. It is normally done by HR but it could also be a leave administrator or another managerial figure. Employers have the option of using DOL forms WH-380-E and WH-380-F for medical certification.
How do other types of leave tie in with FMLA? If an employee takes workers’ compensation or disability leave, get the FMLA clock ticking as well! In other words whenever an employee’s leave involves their own serious illness or injury that prevents them from performing their job, immediately designate the leave concurrently as FMLA leave. If you don’t, employees can take consecutive leave periods that go well beyond their FMLA allotment.
When is intermittent leave permitted? When medically necessary or if due to a qualifying exigency, you must allow the employee to take their leave intermittently or on a reduced leave schedule. Likewise, the employee has to make reasonable efforts to schedule leave for planned medical treatments such that they don’t unduly disrupt your operations.
How does unpaid leave work for salaried, exempt staff? The use of unpaid FMLA leave, intermittent or otherwise, does not compromise an employee’s status as exempt under the Fair Labor Standards Act, even if they do not receive their full week’s salary. FMLA leave is one of the exceptions under the FLSA to the requirement that exempt employees be paid their full weekly salary regardless of the number of hours worked that week.
Can FMLA leave be paid? Yes, if your leave policy provides for it, the employee may choose or you may require the employee to use their accrued vacation or sick leave for some or all of their FMLA leave.
How do I keep up with the FMLA requirements related to the Military Family Leave addition to the law? This is an area of the law that has its own specific rules. When you encounter this situation, do your homework and start with DOL Fact Sheet 28-A. It covers just about everything you’ll need to know.
In our next blog, FMLA Administration – Part 3, we’ll take a look at some situations that are different enough to ignite some questions but not so rare that you’ll never run across them.
Of all the headaches HR professionals deal with, the Family and Medical Leave Act (FMLA) head throb is among the most frequent complaints. The law’s complexity is exacerbated by its overlap with a host of other laws: workers compensation, the Americans with Disabilities Act (ADA), similar state leave laws and the Uniformed Services Employment and Reemployment Rights Act (USERRA.) What’s the best approach to get a handle on the FMLA and its legal cohorts so you can feel confident about compliance? Start with a foundation of understanding the basics, add more complex features to your knowledge base from there, and, when you face an unusual or complicated scenario, do your homework thoroughly.
The most important cornerstone in your foundation of leave law compliance is applicability. You must first know whether the laws apply to you as an employer; and, if so, which employees are covered, what must be provided and under what circumstances. If you operate in any of the eleven states (plus District of Columbia) that have a law similar to the FMLA, get to know those requirements because state law is likely to be broader: cover smaller employers, have more qualifying situations, provide for more types of leave and benefit protections. Where both federal and state laws apply, you must provide what is most advantageous to the employee.
FMLA applies to private employers who meet a threshold of 50 or more employees within a 75 mile radius as well as to all governmental agencies and elementary and secondary schools, no matter how few their employees. Also, there are special FMLA regulations that apply to schools and to airline flight crews with information available on the DOL website.
Employees, to be eligible for FMLA, must have worked at least 12 months (not consecutively) for the employer and have put in at least 1250 hours during the past year. Keep in mind that, under USERRA, hours that an employee would have worked but for his or her military service are credited toward the 1,250 hours. Similarly, such time must be counted in determining whether the employee has been employed at least 12 months.
The FMLA requires that you provide eligible employees with job-protected, unpaid leave for up to 12 weeks during a 12 month period if they have a qualifying reason. Events that qualify include:
• the birth of a son or daughter, and to care for the newborn child;
• the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
• caring for an immediate family member (spouse, child, or parent — but not parent-in-law) with a serious health condition; and
• when the employee is unable to work because of a serious health condition.
There are also currently two qualifying situations related to military families:
• Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered service member on active duty (or has been notified of an impending call to active duty).
• To care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member.
In the case of the latter bullet, up to 26 weeks of military caregiver leave may be taken within a 12 month period. If you encounter either situation, review the DOL’s Fact Sheet #28A. It should also be noted that an expansion of FMLA related to military service is currently under consideration.
Some employers don’t realize that they should define their 12-month leave year. If you don’t designate which of the four types of allowable leave years your organization uses, a court could decide for you and their decision is likely to reflect whichever is most favorable for the employee. You may change your choice but only with 60 days’ notice to employees and then only if no employee is harmed by the change. The four methods permitted are:
the calendar year;
any fixed 12 month period, such as fiscal year or anniversary date;
“forward year” method looking forward 12 months from the first date leave is used; and
“rolling year” method looking backward 12 months from the date leave is used;
The first two are the most straight forward and easiest to administer using a set 12 months as the leave year period but allow for the possibility of 24 weeks of leave in a row: 12 at the end of one year and 12 more at the beginning of the next. Under #3, the forward year method, the 12-month period begins on the first day of the employee’s leave and the employee receives up to 12 weeks for all qualifying events which occur during that upcoming year. Number 4, the rolling method is more complicated to administer but is viewed as the best method to limit the amount of leave employees can take. Under this option, each time an employee takes FMLA leave, the remaining entitlement equals any balance of the 12 weeks they haven’t used during the preceding 12 months. An example makes this clearer:
Suppose an employee uses four weeks beginning February 1, four weeks beginning June 1, and four weeks beginning December 1. That’s 12 weeks and they won’t be able to take any more FMLA leave until February 1 of the next year. However, at that point the employee will only be entitled to four weeks of leave, with an additional four becoming available on June 1 and four more on December 1.
So those are some keystones in your foundation of FMLA compliance knowledge. In Part 2, we’ll discuss some situations that get more detailed and complicated so you can build upon these basics. Stay tuned.
