The Family Medical Leave Act applies to employers who employ 50 or more workers for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. This Federal statute provides eligible employees with up to 12 workweeks of leave during any 12-month period. An employee may use such leave for the following reasons: (a) the birth of a child, as well as the care for the newborn child; (b) the adoption or fostering of a child; (c) the care for a spouse, child or parent who has a serious health condition; and (d) a serious health condition that prevents the employee from performing his job.
Upon return from such leave, the employee is entitled to (i) his old position; or (ii) be restored to an equivalent position with equivalent benefits and pay. Also, use of such leave cannot result in the loss of any employment benefit accrued prior to the date the leave commences. The term “employment benefit” includes group life insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions.
If after returning from FMLA leave, the employee is unable to perform an essential function of his position because of a physical or mental condition (including the continuation of a serious health condition), he has no right to restoration to another position. If an employee does not return after the expiration of his FMLA leave, the employer may terminateemployment. Also, an employer may terminate if the employee is not using the leave time as required under the FMLA, even if the 12 weeks has not expired. For example, an employer can terminate the employment of an employee who requested leave to care for a sick spouse but went on a camping trip instead.
An employee is not entitled to his position, however, if he is a key employee. This exception applies only if such denial is necessary to prevent substantial and grievous economic injury to the employer’s operations, the employer notifies the employee of this possibility and, if the employee is on leave before he receives such notification, he chooses not to return to employment after receiving such notice. For purposes of the Act, a key employee is a salaried employee who is among the highest paid 10% of the employees employed by the employer within 75 miles of the facility at which the employee is employed.
An employer is required to provide its employees with notices regarding the employees’ rights under the Act. If the employer provides its employees with a written document explaining their benefits and leave rights (for example, in an employee handbook), it must incorporate information on the Act. If the employer does not have such a document (and/or the document does not specify an employee’s rights under the Act), the employer has to provide the employee with notice specifying his rights when the FMLA leave is taken.
The notice has to include the following: (i) leave will be counted against the employee’s annual FMLA leave entitlement; (ii) if the employer wants the employee to provide a medical certificate, such instructions, as well as the consequences of not providing the same; (iii) the employee’s right to substitute paid leave and whether the employer will require the substitution of paid leave; (iv) any requirements for the employee to make any premium payments to maintain health benefits; (v) any requirement to present a “fitness-for-duty” certificate for the employee to be restored to his position; (vi) if the employee is a key employee, and if so, the potential consequence that restoration my be denied following the FMLA leave, explaining the conditions required for such denial; (vii) the employee’s right to restoration to the same or an equivalent job upon return; and (viii) the employee’s potential liability for health insurance premiums that the employer made during the leave if the employee fails to return to work after the leave.
If the employer does not provide the notice described above, it may not take action against the employee for his failure to comply with any item required in the notice. However, failure to notify the employee that his leave is FMLA leave will not result in the employee receiving additional FMLA leave time.
This article is a general analysis of the law in this area. For analysis as to a specific factual scenario, please contact us.
– Andrew Berenson