The U.S. Department of Labor issued changes to the federal Family and Medical Leave Act (FMLA) that could affect you as a small business and as an employer. New regulations went into effect on January 16, 2009 that expands the FMLA for families of military service members.
As amended, the FMLA generally provides that covered employers must: a) allow eligible employees to take 12 weeks of unpaid leave during any 12–month period for certain statutory reasons, or up to 26 weeks in a single 12–month period to care for a service member, b) continue the employee’s group health insurance benefits while on leave, c) restore the employee to the same or equivalent job upon return from leave, and d) not take any adverse action against an employee for taking FMLA leave.
This federal law applies to all:
An employee is eligible for FMLA if he or she:
Covered employers must grant eligible employees up to 12 weeks of unpaid leave during any 12–month period for any of the following reasons:
Covered employers must grant eligible employees up to a total of 26 weeks of unpaid leave during a single 12–month period to care for a covered service member who is their spouse, son, daughter, parent or next of kin.
Generally, no. Although an employer or employee can choose to apply accrued sick, vacation or other benefits toward FMLA, the employer is not required to continue to pay the employee under federal law.
A serious health condition is an illness, injury, impairment or physical or mental condition that involves:
A complete definition of serious health condition can be found within the regulations at 29 CFR part 825.113.
A covered service member is a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness incurred in the line of duty on active duty that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.
Yes. An employer may require an employee to provide a certification issued by the health–care provider of the employee or the employee’s family member to determine that an employee is unable to perform the functions of the position or that the employee’s family member has a serious health condition or is a covered service member. The DOL has provided several sample forms for this purpose. The employer may require the certification to be returned within 15 days.
If an employer has reason to doubt the validity of the certification of the health–care provider, it may require the employee to obtain a second (or third) opinion at the employer’s expense. The employee is entitled to continue leave while the employer seeks this information. In addition, the employee may request a copy of the second or third medical opinion. If the additional certifications do not establish the employee’s entitlement to leave, the leave may be retroactively designated non–FMLA leave.
An employer may directly contact the employee’s health–care provider to seek clarification or authentication of the medical certification, but only after the employer has given the employee seven days to cure any deficiency. To make such contact, the employer may use a health–care provider representing the employer, a human–resources professional, a leave administrator or a management official. If the FMLA leave and workers’ compensation leave run concurrently, the employer may contact the employee’s workers’ compensation health–care provider if the state worker’s compensation law allows employers to contact the employee’s workers’ compensation health–care provider.
An employer may request recertification every 30 days in connection with an absence unless the medical certification indicates that the minimum duration is more than 30 days. If a longer period is provided, certification cannot occur before the time period expires, unless circumstances change, or an employer has reason to doubt the validity of the initial certification. In all cases, however, employers can request recertification every six months, even where the certification states a longer period. Each new leave year gives the employer the opportunity to obtain a new “initial” certification, and thus obtain second and third opinions.
Yes. An employer may require that an employee’s request for leave be supported by a certification when a family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. The DOL has provided a sample form for this purpose.
Yes. While an employee is on FMLA leave, the employer must maintain the employee’s coverage under any group health plan on the same terms as if the employee continued to work. An employee, while on leave, is required to pay the employer his or her portion of the group health benefit premiums. In the absence of an established employer policy providing a longer grace period, an employer’s obligation to maintain health insurance coverage ceases under FMLA if an employee’s premium is more than 30 days late. The employer must provide written notice to the employee at least 15 days before coverage will terminate. The employer should inform the employee that coverage will expire 15 days after the date of the letter unless payment is received. Employers may terminate an employee’s health benefits retroactively if: 1) the employer has policies offering other forms of unpaid leave and those policies permit the employer to terminate coverage retroactively to the first date of the period to which the unpaid premium applies, and 2) the employee was provided with a 15-day notice.
If benefits are cancelled as a result of the employee’s failure to pay premiums, the employer must restore the employee to benefits equivalent to those the employee would have had if leave had not been taken, including family or dependent coverage upon his or her return to work. The employee may not be required to serve a new pre–existing condition waiting period, wait for open enrollment, or pass a medical examination to obtain reinstatement of coverage.
If leave is foreseeable, the employee must provide the employer with at least 30 days advance notice whenever practicable. If a 30–day notice is not possible or if leave is not foreseeable, notice must be given as soon as practicable. As soon as practicable ordinarily means an employee would provide verbal notice to his or her employer within one or two business days of when the need for leave becomes known to the employee. An employer may also require that an employee needing FMLA leave follow the employer’s usual and customary notice and procedural requirements for requesting leave (e.g., call–in procedures), absent unusual circumstances. The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for an expected birth or adoption, for example.
Employees may be required to provide the employer with two business days advance notice of any change in circumstances that requires an extension of leave or an early return to work.
When the leave is due to the active duty of a family member in the Armed Forces and the leave is foreseeable, the employee must provide notice to the employer as is reasonable and practicable.
Yes. Employers are responsible for designating any leave taken as FMLA leave and for notifying an employee of the designation. This should take place within five business days of an employer’s learning that the leave is being taken for an FMLA purpose, absent extenuating circumstances. The designation notice to the employee must be in writing. The DOL has provided a sample form for this purpose. Only one notice is required in the case of intermittent leave or leave on a reduced schedule for each FMLA–qualifying reason per applicable 12–month period.
When an employer wants to substitute an employee’s paid leave for unpaid FMLA leave or count paid leave under an existing leave plan as FMLA leave, the decision must be made within five business days of the time an employee gives notice of a need for leave, unless the employer does not have sufficient information to determine that the paid leave qualifies as FMLA leave. If the employer learns that leave is for an FMLA purpose after leave has begun, the paid leave may be retroactively counted to the extent it qualifies as FMLA leave, provided that the employer’s failure to timely designate leave does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave.
Any dispute over whether paid leave qualifies as FMLA leave should be resolved through discussions between the employer and the employee. Documentation of those discussions and the decision is required by the FMLA.
A COBRA qualifying event does not occur until the last day of FMLA leave provided the employee on leave does not return to work.
Additionally, cancellation of group health coverage for nonpayment of premiums during an FMLA leave, regardless of whether the employee returns to work, is not a qualifying event under COBRA. If group health coverage is maintained by the employer during FMLA leave despite nonpayment of premiums, the employer may seek recovery for the premiums paid even if the employee later states that coverage was not desired. Employers cannot condition COBRA continuation coverage upon repayment of group health premiums if employees default on premium payments while on FMLA leave. What is the Relationship between the FMLA and the Americans with Disabilities Act?
Employers must comply with both the FMLA and the ADA. Employee rights under the Americans with Disabilities Act (ADA) are cumulative with the employee’s rights under the FMLA. For example, an employee whose health condition qualifies as a disability under the ADA may also be entitled to leave benefits and protection under the FMLA.
Employee rights under the FMLA and workers’ compensation plans are cumulative. Therefore, an employee with an on–the–job injury that also qualifies as a serious health condition may receive benefits under the FMLA and state workers’ compensation laws.
However, employees cannot receive workers’ compensation benefits and paid FMLA leave concurrently. For example, if an employee receives workers’ compensation benefits, neither the employee nor employer can require substitution of paid leave for unpaid leave. An employer or employee may, however, substitute paid leave for unpaid leave when workers’ compensation benefits cease. Further, an employer and employee may agree, where state law permits, to have paid leave supplement the disability plan or workers’ compensation benefits, such as in the case where a plan only provides replacement income for two–thirds of an employee’s salary.
The federal FMLA does not supersede any state or local law that provides greater family or medical leave rights. Not all employers will be “covered employers” under both state and federal law. A thorough review of both laws should be made. Where both laws apply, the employee is entitled to the greater of the two benefits.
The DOL maintains several Web sites dedicated to providing information regarding the FMLA. The DOL Web site dedicated to the general discussion of the FMLA can be found at: http://www.dol.gov/esa/whd/fmla/
The DOL Web site dedicated to the discussion of the updated regulations and sample forms can be found at: http://www.dol.gov/esa/whd/fmla/finalrule.htm
This legislative brief is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. Content copyright © 2009 Zywave, Inc. All rights reserved. Used under license by TriSure.