Navigation FMLA in 2018

Experiencing personal health problems ranks near the top of the list of life’s stressors. But according to the Holmes-Rahe Stress Inventory, a major change in the health of a family member isn’t far behind. Dealing with these medical issues, meanwhile, can cause complications for employees (Pioneer Educator).
While employers generally offer workers some form of sick leave that they can use in case of their own illness, what can you do if a close family member is having health difficulties? This is the purpose behind the Family and Medical Leave Act, a federal law that was passed in 1993 to help employees balance their work responsibilities with family demands.
Here are six things you need to know about this important legislation:

1. The FMLA allows for 12 weeks of leave during a 12-month period – but the leave is unpaid. Since this law requires employers to let their workers take time off to care for an ill family member, you might assume that the time off would be paid – but you’d be wrong. You can take the sanctioned 12 weeks off per year to help out your ailing relative, but you won’t be able to collect a pay check while you do it.
2. You may be able to use paid leave while on FMLA leave.Though the FMLA itself is unpaid, it is sometimes possible – under certain specific circumstances – to use paid leave that you’ve accrued on the job as a way to get paid during your FMLA leave. The types of paid leave that might be considered include vacation days and sick days, as well as other types of paid leave. There is no legal requirement, however, for employers to offer this type of extra paid leave. And some employers may require that you use up any paid leave that you’ve accrued prior to taking leave under the FMLA. Check with human resourcesto confirm your company’s policies.
3. You’re only eligible to take FMLA leave under certain circumstances. While you may feel entitled to take time off under the FMLA for any type of family health crisis, the leave is only approved for specific reasons. The three designated circumstances to take leave under the FMLA are:

• To deal with a serious health condition of your own or of a family member
• For specified reasons related to certain military deployments or to care for a covered service member
• For the birth of a child and to bond with the new born, or placement of a child with the employee for adoption or foster care

4. Not every employer – or employee – is covered. Just because you’re working for an employer doesn’t mean that it must offer you leave – some companies are not covered by the FMLA. Only employers who have had at least 50 employees for at least 20 weeks in the current or previous year must comply with the FMLA. Smaller employers with fewer than 50 employees are not mandated to follow FMLA law. Plus, even if your employer is covered by the FMLA, it doesn’t mean that you as an employee will be covered. If you haven’t worked for the company for at least one year, and at least 1,250 hours during that year, then you won’t be protected under the FMLA. (That’s around 156 days out of the year for an employee who works eight-hour days.) For eligibility, you also must work at a location where the employer has a minimum of 50 employees within a 75-mile radius.
5. You may need to provide proof of the serious medical condition.Your word alone may not be enough for your employer to grant you FMLA leave. This can be a touchy subject since the law doesn’t require that employees show proof of their reason for requesting leave. But the FMLA does grant employers the right to ask for medical certification of the condition from a health care provider. The Department of Labour website advises employers to request this certified proof within five days of an employee requesting FMLA leave. If your supervisor does request medical certification from the doctor treating you or your family member, then you have 15 calendar days to provide that proof (in most circumstances). The DOL also states that an employer has the right to contact the health care provider to request clarification or authentication of the specific health issue in question.
6. Your employer must offer you a job after your leave – but it may not be the exact job you had before. The good news is, FMLA legislation does require that your employer reinstate you as an employee in the company. Yet although you’re entitled to a job after going out on FMLA leave, the law doesn’t require that the company give you your old job back. Specifically, according to the DOL, “an employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.” This means while you’ll ideally be offered your current job back, there is no guarantee of that. There is some gravy area around the term “equivalent” – but as an example, if you take leave from a manager position, you should be offered the same or comparable management-level position upon your return.

There are plenty of other regulations and provisions to understand in relation to taking leave under the FMLA.
If you’ve been running a business with a team of employees for any length of time, you are familiar with the Family and Medical Leave Act. Navigating the finer points of this legislation, however, can be tricky. Some states have their own variations of the FMLA, and things can get complicated when FMLA and ADA meet. If you want to continue the discussion after you’re through with this article, register for the FMLA Webinar on March 14th  mention Beyond Pay when asked for your referral source.

Employee Responsibilities

Most of us think of the FMLA in terms of the employer’s responsibilities. But there are stipulations for the worker as well. Keep in mind, an employer should always communicate clear expectations for employee responsibility with any leave of absence. For instance, employers should clearly explain upon hire that employees are expected to give at least a 30-day notice for planned time off for scheduled surgeries or the birth of a child.
Employees are also responsible for providing verification for the illness at hand. Employers are often uncertain what to do when an employee fails to provide verification of their (or an immediate family member’s) illness. Although employees are never required to disclose the exact nature of the condition, they can and should be asked to provide certified proof that they have a legitimate reason to take time off. In general, employees have 15 days to supply this information. While workers are on leave, employers have the right to request updates to plan accordingly. If employees do not comply, an employer’s next step is to present them with a written request for the missing documentation.

Intermittent Time Off

Employees can also take intermittent leave under FMLA with the employer’s same right to request documented proof. Some businesses offer to combine intermittent leave with telecommuting. Employers who offer this option should ensure that they can do so in good faith.
Making any sudden changes to medical leave policies can lead to legal trouble. In Wink v. Miller Compressing Company, the employer abruptly stopped allowing an employee with a disabled son to combine time-off with working from home. The company was found liable since it incorrectly structured FMLA, claiming employees were only allowed to take time off for doctor visits or therapy appointments. FMLA by law gives workers the ability to take time off to care for family members at home.
Making certain that company FMLA procedures are compliant, sustainable, documented and clearly communicated ensures protection for both the employer and employee.

Different States, Different Laws

You need to be especially mindful of compliance issues if your business has locations in multiple states. While federal legislation does not require employers to provide paid time off, some states do. (Paid out as disability benefits, the leave is funded by payroll taxes.) In 2016, New York passed legislation inducting mandatory Paid Family Leave which takes effect January 1, 2018. California is moving toward a plan to provide new parents and caregivers six weeks of paid leave and the Families reports that Connecticut, Hawaii and Montana have passed similar legislation with several other states expected to follow suit in the coming months.

When FMLA and ADA Overlap

In some cases, FMLA and ADA coverage intersect. A serious health condition recognized by the ADA may require an employee to take off more than the allotted 12 weeks in a given year under FMLA. In this situation, employers are required to grant the necessary time-off, so long as it does not create undue hardship. This does not mean you have to grant indefinite leave.
The general rule of thumb is to follow provisions of FMLA first since it provides greater leave coverage for workers along with stricter guidelines to ensure compliance, helping employers avoid possible legal battles down the line.
It’s also a good rule to follow FMLA initially since what constitutes a “reasonable” accommodation is still being hashed out by the courts. The US Seventh Circuit Court of Appeals ruled that an extended leave of absence does not qualify as an accommodation because the purpose of accommodations is to support employees while they are working. Ultimately, they are not able to work while taking extended leave. (The Court did not reject the idea of short-term or intermittent time off as a reasonable accommodation). The EEOC has taken a conflicting stance on the matter. It’s too early to know whether subsequent rulings will side with the Seventh Circuit Court or the EEOC. For now, businesses are advised to first follow the FMLA and company policy.

Pregnancy Considerations

Employees may need to take time off because of pregnancy-related conditions. In 2015, the Supreme Court ruled in Young v. UPS that workers with pregnancy-related conditions should be accommodated in the same ways as disabled workers or those who are injured on the job. Employers should be aware that the courts have interpreted Title VII of the Civil Rights Act (barring discrimination on the basis of pregnancy) to include a wide range of situations that extend beyond pregnancy, including contraception, fertility treatments, miscarriages and elective abortions. Employers should also be prepared to accommodate workers postpartum.

Protecting Yourself from Liability

Knowing your rights and responsibilities as an employer can help you protect yourself from legal hurdles. Ensure that you know what is covered and what is not and stay informed of any new legislative developments.
It’s also critical for employers to take their workers seriously when addressing a medical condition or need an accommodation. Ensure your employees know their rights and responsibilities and that the information you provide is accurate and up-to-date. The best way to communicate this information to employees is by displaying the most recent FMLA Labour Law poster and providing an updated employee handbook with your company leave standards. If you are in need of an updated labour law poster, you can subscribe to our Poster. If you’re lacking coverage with an employee handbook, learn more about handbook audits or personalized development with our HR Business Partner service.