The Legal Intelligencer
Under the Family and Medical Leave Act (FMLA), employees may take an unpaid, job-protected leave of absence for certain family and medical reasons. Employers often find it challenging to keep track of their obligations under the FMLA. This article will help employers to avoid common problems by reviewing 10 of the top dos and don’ts.
• Do provide employees with proper notice of their rights. The FMLA applies to “covered employers.” Private companies meet this definition if they have at least 50 employees, in at least 20 weeks during the current or previous calendar year. Public agencies, elementary schools and secondary schools are also covered employers.
Covered employers are required to notify employees of their FMLA rights in two ways. First, employers should post a notice explaining the FMLA’s provisions and how to file a complaint. This posting can be electronic. Second, employers should provide written FMLA information to new employees. This information can be included in an employee handbook. Employers also may distribute this information electronically. The Department of Labor has a sample poster and notice on its website. (29 Code Fed. Regs. Section 825.300(a)).
• Don’t create new forms from scratch. The Department of Labor publishes sample FMLA forms on its website. While these forms are optional, the regulations establish a “safe harbor” for employers that choose to use them. (See 29 Code Fed. Regs. Section 825.310(d).)
• Do confirm when a rehired employee becomes eligible. FMLA leave is available to “eligible employees,” meaning employees who: work for a covered employer; have been employed for at least 12 months; have worked at least 1,250 hours within the past 12 months; and work at a location where the employer has at least 50 employees within 75 miles.
Rehired employees may combine multiple periods of service to satisfy the 12-month minimum. For example, if an employee works five months in 2012 and seven months in 2017, the employee will become eligible once he or she meets the other criteria. The only limitation of this rule is that an employer doesn’t need to “look back” at previous employment that occurred more than seven years before the employee most recently was hired.
• Don’t limit leave to work-related conditions. Some employers believe employees may only exercise FMLA rights if they are hurt on the job. In fact, the FMLA applies to any “serious health condition,” meaning a condition that involves inpatient care or continuing medical treatment. It doesn’t matter where, when, or how an employee was injured.
• Do attach the employee’s job description to a designation notice. After an employee requests FMLA leave, an employer responds with a designation notice, which explains whether the request has been approved. This notice typically advises employees that before returning to work, they will need to provide a fitness-for-duty certification from a health care provider.
Employers should attach the employee’s job description, or a list of essential functions of the employee’s position, to the designation notice. This will require the health care provider to comment on whether the employee can perform these functions. In other words, the provider’s opinion will be measured against a meaningful standard. If the provider is unsure of the essential functions of the position, the provider may rely on the employee’s own report. For example, the employee could fail to mention lifting or driving requirements, in which case the fitness-for-duty certification might be inaccurate.
• Don’t require that medical information must come from a doctor. Under the FMLA, a “health care provider” may supply medical information. A medical doctor meets this definition, but health care providers also include clinical psychologists, nurse practitioners, physician assistants, Christian Science Practitioners, and (in limited circumstances) chiropractors. (See 29 Code Fed. Regs. Section 825.125.)
• Don’t second-guess a completed fitness-for-duty certification. A fitness-for-duty certification expresses the opinion of an employee’s health care provider that he can perform the essential functions of the position. In general, employers must allow employees to return to work once they supply a completed certification. The employer may contact the employee’s health care provider to clarify or authenticate the certification, but this communication should not delay the employee’s return to work.
Employers cannot require a second or third opinion. If an employer believes an employee needs to be seen by a health care provider of the employer’s choice, the employer’s remedy is to restore the employee to work, and then to arrange this examination. Under the Americans with Disabilities Act (ADA), an employer may only follow this procedure if the examination is job-related and consistent with business necessity.
• Don’t require that employees return to work without restrictions. The ADA requires employers to make an individualized assessment of when an employee is capable of returning to work. Most courts have concluded the same assessment is needed under the FMLA. Therefore, an employer’s policies may violate the FMLA if they require employees to return to work without restrictions. For instance, if a full-time employee provides a fitness-for-duty certification stating that she can return to part-time work, the employer must assess whether this schedule change would be a reasonable accommodation. A blanket policy that refuses even to consider this arrangement would be problematic.
• Do consider whether to extend an employee’s leave under the ADA. The FMLA provides 12 weeks of leave within a 12-month period. Once an employee has exhausted this leave, some employers believe the employee must return to work or face termination. This analysis overlooks the employer’s obligation, under the ADA, to make reasonable accommodations. Depending on the circumstances, it could be a reasonable accommodation to extend the employee’s leave beyond 12 weeks.
• Do keep in mind limitations on an employee’s right to reinstatement. While the FMLA generally requires employers to reinstate employees at the conclusion of their leave, this protection is not absolute. An employer is not required to reinstate employees whose employment would have ended anyway during their leave. For example, if the employee would have been laid off during the leave, he or she does not need to be reinstated. An employer may reinstate an employee to a different shift if his usual shift was eliminated during the leave.
Hopefully, these dos and don’ts clear up some common misconceptions about the FMLA. Employers with additional questions should consult the FMLA regulations (which are cited in this article), The Employer’s Guide to The Family and Medical Leave Act (which is on the Department of Labor’s website), or an employment lawyer.
*Reprinted with permission from the 8/10/17 issue of The Legal Intelligencer. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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