4430.01 - FAMILY AND MEDICAL LEAVE ACT

Brevard County (Florida)

Administrative Procedures

4430.01 - FAMILY AND MEDICAL LEAVE ACT
INTRODUCTION

It is the policy of the District to provide up to twelve (12) weeks of job protected leave to eligible employees for certain family and medical reasons, and up to twenty-six (26) weeks of job protected leave to eligible employees for service member family leave.

BOARD POLICY/LEGAL AUTHORITY
Board policy prohibits the discrimination against any individual(s) with regard to access to family and medical leave. The Board has set forth their policy under The Rules of the School Board of Brevard County, Florida, 6Gx5-7.11(5),"Family and Medical Leave". The specific legal authority for the Act is, law implemented, interpreted, or made specific: F.S. 110.221, 1012.61. F.A.C. 6A-1.075; 6A-1.081; F.A.C. 6A-1.75. Revised October 12, 1993.

FAMILY AND MEDICAL LEAVE ACT

A.	Definitions

	1.	Certification:

		An employee who requests leave because of a serious health condition or to care for a spouse, child, or parent with a serious health condition, will be required to support the leave request with a certification issued by the health care provider. A certification must include the date on which the serious health condition began, its probable duration, and the appropriate medical facts within the knowledge of the health care provider regarding the condition.

	2.	Continuing Treatment by a Health Care Provider:

		Any one (1) or more of the following:

		a.	the employee or family member is treated two (2) or more times for the injury or illness by a health care provider;

	b.	the employee or family member is treated for the injury or illness two (2) or more times by a provider of health care services (e.g., a physical therapist) on referral by a health care provider, or is treated for the injury or illness by a health care provider on at least one (1) occasion which results in a continuing treatment plan under the supervision of the health care provider to resolve the condition;

	c.	the employee or family member is under the continuing supervision of, but not necessarily being actively treated by, a health care provider due to a serious long-term or chronic condition or disability which cannot be cured (e.g., Alzheimer’s disease, severe strokes, terminal cancer).

3.	Eligible Employee:

	An employee who has been employed:

	a.	for at least twelve (12) months by the employer with respect to whom leave is requested; and

	b.	for at least 1,250 hours of service with such employer during the previous twelve (12) month period is eligible for family and medical leave under the FMLA.

4.	Employer:

	Any person engaged in commerce or in any industry or activity affecting commerce who employs fifty (50) or more employees for each working day during each of twenty (20) or more calendar workweeks in the current or preceding calendar year is considered an employer under the FMLA. For purposes of this handbook, the District is the employer.

5.	Employment Benefits:

	These include all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, or pensions.

6.	Equivalent Position:

	A position with equivalent pay, benefits and working conditions, including privileges, prerequisites, and status. The equivalent position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

7.	ERISA (Employee Retirement Income Security Act):

	ERISA sets standards to assure the fairness and financial soundness of employee benefit plans and to ensure workers receive benefits promised by their employers.

8.	Health Care Provider:

	A health care provider as defined by the FMLA as a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State in which s/he practices. Anyone determined by the Secretary of Labor to be capable of providing health care services will also qualify as a health care provider. Included are:

	a.	podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist) authorized to practice in the State;

	b.	nurse practitioners and midwives who are authorized to practice in the State;

	c.	Christian science practitioners listed with the First Church of Christ, Scientist in Boston, Mass.

9.	Highly Compensated Employee:

	For FMLA purposes, a highly compensated employee is a salaried eligible employee who is among the highest paid ten percent (10%) of employees who work within seventy-five (75) miles of the facility where the employee taking leave is employed.

	10.	Incapable of Self Care:

		The individual requires active assistance or supervision to provide daily self-care in several of the "activities of daily living" or "ADL’s". ADL’s include adaptive activities such as caring for one’s grooming and hygiene, bathing, dressing, eating, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, using a post office, et cetera.

	11.	In Loco Parentis:

		Those persons with day-to-day responsibilities to care for and financially support a child or, in the case of an employee, who had such responsibility for the employee when the employee was child. A biological or legal relationship is not necessary.

	12.	Instructional Employee:

		Defined as an employee employed in an "instructional capacity", which includes teachers or other employees whose principle function is to provide educational services directly.

	13.	Intermittent Leave:

		This is leave taken in intervals and not consecutively. Intermittent leave does not result in a reduction in the total amount of leave to which the employee is entitled beyond the amount of leave actually taken.

	14.	Local Educational Agency (LEA):

		This can be a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State. The District is an LEA.

	15.	Multi-Employer Health Plan:

		A health plan to which more than one (1) employer is required to contribute, and which is maintained pursuant to one (1) or more collective bargaining agreements is referred to as a multi-employer health plan.

	16.	Parent:

		Under the FMLA, a parent is the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter. This includes an individual who assumed "day-to-day" responsibility for a child.

	17.	Pregnancy Discrimination Act:

		The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 by expanding the definition of "sex" to include, "pregnancy, childbirth and related conditions." The act makes it unlawful for employers to discriminate against pregnant women in hiring, training, discharge, compensation, terms, conditions, or privileges of employment.

	18.	Public Employer:

		Public employers include the government of the United States; the government of a State or a political subdivision of a State; any agency of the United States (including the U.S. Postal Service and Postal Rate Commission); or any interstate governmental agency. The District is a public employer.

	19.	Reduced Leave Schedule:

		Leave scheduled for a fewer number of hours than an employee usually works during each workweek or workday is referred to as a reduced leave schedule.

20.	Serious Health Condition:

	An illness, injury, impairment, or physical or mental condition that involves:

	a.	any period of incapacity or treatment in connection with or consequent to inpatient care (e.g., an overnight stay) in a hospital, hospice, or residential medical care facility;

	b.	any period of incapacity requiring absence from work, school, or other regular daily activities, for more than three (3) calendar days, which also involves continuing treatment by a health care provider; or

	c.	continuing treatment by a health care provider for chronic or long-term health conditions that are incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three (3) calendar days.

21.	Son or Daughter:

	This can be a biological, adoptive, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is:

	a.	under eighteen (18) years of age; or

	b.	eighteen (18) years or older and incapable of self-care because of a mental or physical disability.

22.	Spouse:

	A husband or wife as defined or recognized under State law for purposes of marriage, including common law marriage in states where it is recognized. The definition is intended to make clear that an employer does not have to grant an employee family or medical leave to care for an unmarried domestic partner.

	23.	Willful Violation:

		A willful violation occurs when an employer knew or showed reckless disregard for the matter of whether its conduct was prohibited.

	24.	Worksite:

		The worksite is the single site of employment to which an employee is assigned as his/her home base from which s/he is assigned, or to which s/he reports.

B.	Eligibility and Coverage

	1.	Eligible Employees:

		The term "eligible employee" is defined by the Department of Labor’s (DOL) regulations under the Family and Medical Leave Act of 1993 (FMLA) as an employee who has been employed by his/her employer for at least twelve (12) months (29 C.F.R. 825.110(a)(1)). The FMLA’s regulations state that these twelve (12) months of employment do not need to be consecutive (29 C.F.R. 825.110(b)).

		In addition to the requirement of twelve (12) months of employment, the employee must have worked for at least 1,250 hours of service with his/her employer during the previous twelve (12) month period. Thus, employees with one (1) year of service who have worked an average of approximately twenty-four (24) hours a week during the preceding twelve (12) months are eligible for family or medical leave.

		A determination of whether an employee has worked for his/her employer for at least 1,250 hours in the past twelve (12) months, and has been employed for a total of twelve (12) months, must be made as of the date leave begins. Thus, an employee may notify his/her employer of the need for FMLA leave before the employee becomes "eligible." If the employer verifies the employee eligibility based upon a future projection that the employee will be eligible on the date leave is to begin, the employer may not subsequently challenge the employee’s eligibility.

2.	Hours of Service:

	To determine whether an employee meets the specified hours of service requirement, the FMLA says to apply the legal principles established for determining hours of work for payment of overtime under Section 7 of the Fair Labor Standards Act (FLSA). The principles for determining hours worked include the following:

	a.	The workweek ordinarily includes all the time during which an employee is necessarily required to be on the employer’s premises, on duty, or at a prescribed workplace.

	b.	Work not requested, but permitted by the employer is work time. This would include, for example, an employee who voluntarily continued to work at the end of his/her shift.

	c.	Waiting time is considered work time when an employee is on duty.

	d.	Bona fide meal periods are not work time (usually thirty (30) minutes or more is enough to qualify).

	The term "hours worked" does not include time spent on paid or unpaid leave, so these hours do not count toward satisfying the 1,250 hour eligibility threshold. Also, for purposes of the 1,250 hour test, there is no difference between overtime and non-overtime hours worked.

3.	Included Employees:

	Employees who are employed at a "work site" with fewer than fifty (50) employees also are excluded from coverage if the total number of employees employed by the employer within seventy-five (75) miles of that work site is fewer than fifty (50). The seventy-five (75) miles is measured by surface miles using available transportation by the most direct route from the site where the employee requesting leave is employed. For the purpose of determining the number of employees at the work site, or within the seventy-five (75) mile distance, all employees - not just eligible employees – must be counted.

	Example: X Corporation employs forty (40) employees in its corporate headquarters in Boston. X Corporation also has forty-five (45) employees in each of three (3) regional offices in Miami, Houston and Washington, D.C. None of X Corporation’s employees qualify for coverage under the FMLA, even through the company employs 175 workers.

	Example: Y Company employs 1,0000 people at its manufacturing facility and has forty-five (45) employees at each of five (5) warehouses across the country. Y Company’s warehouse employees are not likely to be covered by the FMLA unless one (1) warehouse is within seventy-five (75) miles of another company facility.

	Example: Z Company has a total of eighty-five (85) employees. Thirty (30) of those employees work at a secondary site that is more than seventy-five (75) miles away from the main plant where the other fifty-five (55) employees work. The thirty (30) employees at the secondary site are not covered by the FMLA.

	When employees have no fixed work site (e.g., salesmen, construction workers), the employees’ "work site" means "the single site of employment to which they are assigned as their home base, from which their work is assigned, or to which they report".

4.	Highly Compensated Employees:

	Highly compensated employees" or "key employees" are defined by the FMLA as salaried, eligible employees who are among the highest paid ten percent (10%) of employees of the employer within seventy-five (75) miles of the facility where the employee works. Highly compensated employees are not specifically excluded from coverage under the FMLA, although an employer is allowed to deny them restoration in certain situations. These employees may be denied restoration under the following conditions:

	a.	if the denial of restoration is necessary to prevent substantial and grievous economic injury to the operations of the employer;

		b.	if the employer notifies the employee of its intent to deny restoration as soon as the employer determines that substantial and grievous economic injury would occur; and

		c.	in any case where after leave has already commenced, the employee elects not to return to employment after receiving such notice.

	5.	Employers Covered by the FMLA:

		The provisions of the Family and Medical Leave Act of 1993 (FMLA) apply to the following employers:

		a.	any person engaged in "commerce" or in any industry affecting commerce who employs fifty (50) or more employees for each working day during each of twenty (20) or more calendar weeks in the current or preceding year.

		b.	any public agency as defined in 203 (x) of the Fair Labor Standards Act (FLSA); and,

		c.	local educational agencies and private elementary and secondary schools.

C.	Special Rules for Local Educational Agencies

	Special rules are provided under Title I of the Family and Medical Leave Act of 1993 (FMLA) for "local educational agencies and private elementary or secondary schools" (29 C.F.R. 825.600 et seq.). A "local educational agency" is defined in the Elementary and Secondary Education Act of 1965 as "a public board of education or any other public authority legally constituted within a state for either administrative control or direction of … public elementary or secondary schools …" (20 U.S.C. 2891 (12)). This section recognizes that special attention is required for elementary and secondary schools and that there is a "need to balance the educational needs of children with the family leave needs of teachers," according to the Senate report that accompanied the family leave bill in Congress (Sen. Rep. 103-3, p. 36). The special rules do not apply to colleges and universities, trade schools, pre-schools, and other kinds of educational institutions (29 C.F.R. 825.600(a)).

	The rights, remedies, and procedures under Title I apply to local educational agencies and eligible employees of those agencies, and to private elementary and secondary schools and eligible employees of those schools. However, as is the case with public agency employers, the fifty (50) employee test is not applicable to local educational agencies (29 C.F.R. 825.600(b)). All "local educational agencies" are covered by the FMLA. The requirements for employees to be eligible do apply. This means that employees of covered educational institutions must have been employed for at least twelve (12) months and must have worked at least 1,250 hours in the preceding twelve (12) month period. According to a Department of Labor opinion letter, "the employee would not have to be paid for such time to be included as a part of 'hours of service'". (Wage Hour Opinion Letter FMLA-78 (February 14, 1996)).

	In addition, an employee must work at a site where at least fifty (50) employees are employed within seventy-five (75) miles to be eligible for FMLA leave. For example, an employee of a school in a rural area would not be eligible for FMLA leave if the school has fewer than fifty (50) employees and there are no other schools under the jurisdiction of the same school board within seventy-five (75) miles.

	A local education agency or private school will not violate the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or Title VII of the Civil Rights Act of 1964 simply as the result of an employee exercising his/her rights under the FMLA (Sec. 108(b) of the FMLA). The granting of leave, however, does not relieve a local educational agency from its general obligations under these other Federal statutes.

D.	Duration of Leave and General Requirements

	Under the Family and Medical Leave Act of 1993 (FMLA), eligible employees are entitled to twelve (12) workweeks of unpaid family and medical leave per year for:

	1.	the birth of the employee’s son or daughter and care of the infant;

	2.	the placement of a son or daughter with the employee for adoption or foster care;

		3.	the care of a spouse, son, daughter, or parent of the employee if the spouse, son, daughter or parent has a serious health condition; or

		4.	the employee’s own serious health condition which makes the employee unable to perform the functions of his/her job.

		The FMLA does not distinguish between male and female employees. Both a mother and a father may take leave because of the birth or serious illness of a child. Leave may be taken by both parents at the same time, or it may be taken sequentially, as long as the leave is taken for one of the reasons specified.

		If an employee wishes to take leave based on the birth or adoption of a child, or the placement of a child with the employee for foster care, the leave must be taken within twelve (12) months of the birth or placement. Leave may begin before the date of the birth or placement if circumstances require. For example, an expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. Special leave rules apply to spouses who are both employed by the same employer.

		The FMLA does not require that a child be adopted from a licensed adoption agency. However, a foster care placement must be made by or with an agreement of the State as a result of:

		1.	an agreement between the parent or guardian that the child be removed from the home; or

		2.	a judicial determination of the necessity for foster care (29 C.F.R. 825.112(E)).

		Foster care may be with relatives of the child, although state action must be involved in the removal of the child from parental custody. The FMLA sets no maximum age limit on a child being adopted or placed for foster care.

	E.	"Son or Daughter" and "Parent"

		The FMLA broadly defines the terms "son or daughter" and "parent" to recognize that traditional "nuclear" families where children live with their biological mother and father are not the reality for many in the United States. A "son or daughter" is defined as "a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis..."

		In addition, the "son or daughter" must be under eighteen (18) years of age, or eighteen (18) years of age or older and incapable of self-care because of a mental or physical disability. The regulations define "incapable of self-care" to mean that the individual requires active assistance or supervision to provide daily self-care in three (3) or more of the "activities of daily living" (ADLs) or "instrumental activities of daily living". ADLs include bathing, dressing, cooking, eating, shopping, paying bills, using telephones and taking public transportation. A "physical or mental disability" is a physical or mental impairment that substantially limits one (1) or more of the individual’s major life activities. This is the same definition provided under the Americans with Disabilities Act (ADA).

		The term "parent" is defined as the biological parent of an employee or an individual who stands or stood in loco parentis to an employee when the employee was son or daughter. This does not include parents-in-law.

		With regard to the term "one standing in loco parentis," the FMLA’s intention is to "ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child". In addition, the regulations add that the term includes those with day-to-day responsibilities to "care for and financially support a child..." Thus, coverage under the FMLA is not restricted to biological parents or legal guardians, but also includes grandparents or other relatives or adults who have "day-to-day responsibility" for a child.

		The regulations (29 C.F.R. 825.113 (d)) allow employers to require an employee requesting FMLA leave to provide "reasonable documentation" confirming a relevant family relationship. The documentation may be a simple signed statement from the employee, a child’s birth certificate, a court document, et cetera.

F.	Serious Health Condition

	Twelve (12) weeks of unpaid leave per year is available to eligible employees to care for a spouse, child or parent with a "serious health condition," or for the employee’s own "serious health condition". The FMLA’s definition of the term "serious health condition" is very broad and is intended to cover a variety of physical and mental conditions.

	A "serious health condition" is defined (29 C.F.R. 825.114) as an illness, injury, impairment or physical or mental condition that involves:

	1.	inpatient care (i.e., an overnight stay) in a hospital, hospice or residential medical care facility, including any period of incapacity (defined as an inability to work, attend school or perform other regular daily activities), or any subsequent treatment in connection with such inpatient care; or

	2.	continuing treatment by a health care provider which includes:

		a.	a period of incapacity of more than three (3) consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

			1)	treatment two (2) or more times by a health care provider, or by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) on referral by a health care provider; or

			2)	treatment by a health care provider on at least one (1) occasion which results in a regimen of continuing treatment;

		b.	a period of incapacity due to pregnancy, or for prenatal care;

	c.	a period of incapacity or treatment for a "chronic" serious health condition which requires periodic visits for treatment by a health care provider, continues over an extended period, and may cause episodic rather that a continuing period of incapacity (e.g., asthma, diabetes, epilepsy);

	d.	a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective;

		The employee or family member need not be receiving active treatment by a health care provider (e.g. Alzheimer’s disease, severe stroke, terminal cancer).

	e.	a period of absence to receive multiple treatments for an injury or condition which would result in incapacitation of more than three (3) days if not treated (e.g., chemotherapy or radiation for cancer, physical therapy for severe arthritis, or dialysis for kidney disease).

The regulations provide that "treatments" for serious health conditions include examinations to determine if a serious health condition exists, but do not include routine physical, dental or eye examinations. A "regimen of continuing treatment" would include, for example, a course of prescription medication such as antibiotics. It would not include the taking of over-the-counter medications, bed-rest, drinking fluids, exercise or other activities that could be initiated without visiting a health care provider.

Shot-term conditions requiring only brief treatment and recovery are not "serious health conditions." Normally, these types of conditions are covered under regular employee sick leave policies. Such conditions include common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraines, routine dental or orthodontia problems, and periodontal disease.

However, the Wage and Hour Division has stated that if such a condition "met the regulatory criteria for a serious health condition, e.g., an incapacity of more than three (3) consecutive calendar days that also involves qualifying treatment, then the absence would be protected by the FMLA" (Wage and Hour Opinion Letter FMLA-86 (De. 12, 1996)). Courts interpreting the FMLA also uniformly have required – either expressly or implicitly – a showing of incapacity.

	Also, voluntary or cosmetic treatments (e.g., treatments for acne or plastic surgery) that are not medically necessary, are not "serious health conditions" unless inpatient care is required or complications arise.

G.	Chronic Serious Health Conditions

	Chronic serious health conditions pose distinct challenges to employers under the FMLA, particularly as they relate to intermittent leave and the somewhat limited notice requirements that an employer might impose for certain "flare-ups" of these conditions. The U.S. Department of Labor’s (DOL) FMLA regulations discuss some of the ramifications of chronic serious health conditions. In its definition of "continuing treatment by a health care provider," found at 29 C.F.R. 825.114(a)(2), the agency provided that this term includes "any period of incapacity or treatment for such incapacity due to a chronic serious health condition." In turn, a "chronic serious health condition" was defined as one that:

	1.	requires periodic visits for treatment by a health care provider, or by a nurse or physician’s assistant under direct supervision of a health care provider;

	2.	continues over an extended period of time (including recurring episodes of a single underlying condition); and

	3.	may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes or epilepsy).

	Moreover, even if the employee or family member with a chronic serious health condition does not receive treatment or the absence does not last more than three (3) days, it still may qualify for FMLA leave.

	Example:		The absence of an employee with asthma who is unable to report for work because of the onset of an asthma attack, or because the employee’s health care provider has counseled the employee to stay home when the pollen count exceeds a certain level likely would be covered. A pregnant employee who is unable to report to work because of severe "morning sickness" may have that absence covered by the statute, according to DOL.

		"Continuing treatment by a health care provider" also includes permanent long-term conditions for which treatment may not be effective, such as the terminal stages of a disease, as well as absences to receive multiple treatments (and related recovery periods) for conditions that likely would result in a period of incapacity in the absence of medical intervention or treatment. Examples of the latter circumstances are treatments for cancer (chemotherapy or radiation), severe arthritis (physical therapy), and kidney disease (dialysis).

		Medical certification of chronic conditions might include reference to a need for intermittent leave or a reduced leave schedule, ongoing regimens of treatment, and an estimate of the number of anticipated treatments and intervals between treatments. As a general rule, an employer may only request recertification of a chronic condition under the continuing supervision of a health care provider every thirty (30) days. Moreover, if the minimum duration of the period of incapacity included on a health care provider’s certification exceeds thirty (30) days, recertification may not be requested until that minimum duration has passed, in most circumstances.

		DOL regulations, reflecting the terms of the statute, provide that leave may be taken intermittently or on a reduced leave schedule when "medically necessary" for planned and/or unanticipated medical treatment of a related serious health condition, or for recovery from treatment, or recovery from the condition itself. The agency’s rules provide further, at 29 C.F.R. 825.203(c), with respect to chronic conditions, that intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition even if s/he does not receive treatment by a health care provider.

		Regarding notice of a need for leave, the regulations generally require that an employee provide the employer with at least thirty (30) days’ advance notice if the need for leave is foreseeable based on a planned medication treatment. Where the need for leave is not foreseeable, such as in the case of a medical emergency, the employee is required only to provide notice "as soon as practicable," which will vary based on the facts and circumstances of a specific case.

	H.	Substance Abuse as a "Serious Health Condition"

		Section 825.1112(g) of the regulations states that FMLA leave is available for treatment of substance abuse provided that the condition in question is a "serious health condition" within the meaning of DOL’s definitions. While covered employees possess the right to take FMLA leave for appropriate treatment for their own substance abuse problems, employees also may take FMLA leave to provide necessary care for covered members of their immediate families who are receiving drug or alcohol treatment. Employers are prohibited from taking adverse action against employees who exercise their leave rights in either of these circumstances.

		The regulations further limit the use of FMLA leave for this purpose to treatment for substance abuse by a "health care provider" (or by a provider of health care services referred by a "health care provider"). Thus, an employee’s "self-referral" to any other type of treatment program that does not meet this qualification would not trigger FMLA leave rights. Moreover, the absences of an employee relating to his/her use of drugs or alcohol, rather than treatment of substance abuse, do not qualify for FMLA leave. For example, a covered employee who received alcoholism treatment at an in-patient health care facility for thirty (30) days would be entitled to FMLA leave, and subsequent "after-care" sessions twice each week similarly might qualify for "intermittent leave" under the FMLA and DOL’s regulations. However, if the employee "falls off the wagon" and is absent for three (3) days solely because of a serious drinking "binge" (rather than a treatment-related absence), the latter days away from work would not be eligible for FMLA leave.

		Under the FMLA, an employer can apply its uniform policy requiring each employee returning from leave for a serious personal illness to provide a written certification from the employee’s health care provider that the employee can resume work. In our case, fitness-for-duty certification from employees returning from leave for substance abuse are required in the same way that it is required from employees returning from leave for other conditions.

		The regulations also provide that employee’s rights to protected leave under the FMLA do not insulate them from disciplinary measures – up to and including termination – for violation of an employer’s established (and previously communicated) workplace substance abuse policy that has been applied in a nondiscriminatory manner. The FMLA does not modify or affect the Americans with Disabilities Act (ADA), State workers’ compensation laws, drug-free workplace acts, or other statutes with respect to the maintenance of a workplace policy on substance abuse. If an employer’s substance abuse policy has been widely disseminated to employees, if it provides for adverse action under certain circumstances, and if the employee on FMLA leave has engaged in that specified, prohibited conduct, the policy lawfully can be enforced against that individual.

		The Wage and Hour Division issued an opinion letter regarding employees who assert their FMLA leave rights under an employer’s substance abuse policies without prior notice, which states:

		When employees are absent without advance notice for rehabilitation treatment for substance abuse and the conditions of the FMLA regulations are met such absences may be counted against an employee’s FMLA leave entitlement as provided in Section 825.208. Such an absence may be counted as FMLA leave from the first date of the absence if the employer promptly within two (2) business days of learning of the reason for the absence notifies the employee that the absence is designated and will be counted as FMLA leave (FMLA-70 (July 21, 1995)).

		The agency has responded to other inquiries in this area, some of which are common to many workplaces. Responding to a question regarding an employee testing positive for drug use during a random test – where that employee had never requested FMLA leave and the employer maintained that such a test result would lead to termination – DOL responded that the FMLA does not require the employer to provide the employee with an opportunity to seek treatment and be reinstated (Wage Hour Opinion Letter FMLA-69 (July 21, 1995)). A similar answer came from DOL officials regarding leave and reinstatement requests occurring in the context of a positive "for cause" drug test result (Wage Hour Opinion Letter FMLA-59 (April 28, 1995)).

	DOL has also stated that an employer could enforce a previously communicated, uniformly enforced policy on substance abuse providing for termination if an employee comes forward and admits a drug addiction and his/her placement in rehabilitative treatment by a physician, adding that the FMLA would not require the employer to provide the employee with the opportunity to seek treatment and be reinstated (Wage Hour Opinion Letter FMLA-59 (April 28, 1995)). Finally the Wage and Hour Division concluded that when an employee undergoes substance abuse rehabilitation (utilizing some FMLA leave), but subsequently tests positive for drug use as part of a "follow-up" screening program, s/he is not necessarily entitled to use the remaining FMLA leave and be reinstated a second time. The agency stated that "the employer’s policy could properly provide for termination in such instances; if it did, the employer could properly deny reinstatement under the FMLA" (Wage Hour Opinion Letter FMLA-59 (April 28, 1995)).

I.	Definition of Health Care Provider

	The FMLA defines a "health care provider" as:

	1.	a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State in which the doctor practices; or

	2.	any other person determined by the Secretary of Labor to be capable of providing health care services (29 C.F.R. 825.118);

	3.	this definition also includes any health care provider from whom an employer’s group health plan’s benefits manager will accept medical certification of the existence of a serious health condition.

	Although many employers and employer organizations requested that the definition include only licensed doctors of medicine or osteopathy, the Department of Labor adopted the definition of "physician" under the Federal Employees’ Compensation Act (5 U.S.C. 8101(2)). This definition includes podiatrists, dentists, clinical psychologists, clinical social workers, optometrists and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a condition demonstrated by x-ray to exist), who are authorized to practice in the State and are performing within the scope of their practice as defined under State law (29 C.F.R. 825.118).

		Also included in DOL’s definition are nurse practitioners and nurse-midwives who provide diagnosis and treatment, and Christian Science practitioners. Employers are permitted to require that second and third opinions be provided by health care providers other than Christian Science practitioners. Physician assistants are not specifically included in the definition of health care providers; however, services they furnish under supervision of a physician or services recognized by the employer’s health plan may qualify as "medical treatment" (Wage Hour Opinion Letter FMLA-72 (Sept. 20, 1995)).

		Other definitions related to leave for "serious health conditions" would include eligible employees that are entitled to medical leave "to care for" a spouse, child, or parent with a serious health condition. The phrase "to care for" includes both physical and psychological care, and the arrangement of third-party care for a family member (e.g., nursing home, home care nurse) (29 C.F.R. 825.116).

		The regulations allow health care providers to either certify that the third-party care is required or that the employee’s presence would be beneficial to the ill family member. This certification will satisfy the FMLA’s requirements.

		An employee requesting leave for his/her own condition or illness must be "unable to perform the functions" of his/her position because of the condition. DOL’s regulations make clear that this means any one (1) of the "essential functions" of the position. This does not mean that the employee must be physically or mentally unable to work. An employee who must continually receive medical treatment (e.g., chemotherapy or radiation treatments for an employee with cancer) must be capable of performing his/her job. However, because of the physical absences the employee may be temporarily "unable to perform the functions of his/her position." Thus, the employee would be eligible for leave during the treatments.

		DOL has also stated in an opinion letter that if an employee qualifies for job-protected FMLA leave, the employee may not be forced to return to work in a "light duty" (i.e., modified or restructured) position, before the employee’s job-protected leave entitlement has expired.

		The employee’s health care provider must certify that the employee is unable to perform the essential functions of the job. The regulations advise employers who would like a health care provider to review an employee’s ability to perform essential job functions to designate these essential functions in a position description provided to the employee’s health care provide for this purpose.

	J.	Jurisdictions with Expanded Rights for Non-Married Domestic Partners

		The FMLA allows an employee to take leave to care for "a spouse" who has a serious health condition. A "spouse" is defined as "a husband or wife, as defined or recognized under State law for purposes of marriage, including common law marriage in states where it is recognized" (29 C.F.R. 825.113(a)). The definition of "spouse" was added during Senate debate and is intended to clarify that an employer is not required to grant an employee family leave to care for an unmarried domestic partner.

		Family and medical leave laws in some jurisdictions, but not in Florida, allow employees to take leave to care for a seriously ill individual with whom the employee "maintains a committed relationship." The FMLA does not use the term "family member," and clearly was not intended to cover leave for the care of one's seriously ill non-married domestic partner.

Certification Policy

The Family and Medical Leave Act of 1993 (FMLA) authorizes an employer to require medical certification from an employee requesting medical leave. The law says that an employer may require that a request for leave based on an employee’s own serious health condition, or the serious health condition of the employee’s spouse, child, or parent, be supported by a medical certification from a health care provider (29 C.F.R. 825.305(a)). The regulations provide that an employer "must give written notice of a requirement for medical certification in a particular case, but a verbal request to an employee to furnish any subsequent medical certification is sufficient."

If the leave is foreseeable and at least thirty (30) days’ notice has been provided, the employee should provide the medical certification before the leave begins. In all other circumstances, an employee must provide his/her employer with the requested medical certification within the time frame requested by the employer, "unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts" (29 C.F.R. 825.305(b)). The employer must allow the employee at least fifteen (15) calendar days following the request for certification.

A.	Type of Certification Required

	Medical certification must include certain information (29 C.F.R. 825.306). First, the certification must include a statement indicating which part of the definition of "serious health condition" applies to the patient’s condition, and the medical facts supporting the certification, including a brief statement as to how the medical facts meet the criteria of the definition.

	Second, the certification must include the approximate date the condition commenced and its probable duration, including the probable duration of the patient’s present incapacity. In addition, the certification must state whether it will be necessary for the employee to take intermittent or reduced schedule leave, and if so, the probable schedule of such leave. If the condition is pregnancy or "chronic", the certification must state whether the patient is presently incapacitated and the likely duration and frequency of episodes of incapacity.

	Third, if additional treatments will be required for the condition, the certification must provide an estimate of the probable number of treatments. If a "regimen of continuing treatment" is required, the patient must provide a general description of the regimen.

	Fourth, if the leave is required because of the employee’s own serious health condition, the certification must state whether the employee:

	1.	is unable to perform work of any kind; or

	2.	is unable to perform any one (1) or more of the job’s essential functions, including a statement of the essential functions the employee is unable to perform; or

	3.	must be absent from work for treatment.

		Finally, if the leave is requested to care for a spouse, child or parent with a serious health condition, the certification must state whether the patient requires assistance for basic medical needs, personal needs, safety or transportation; or, if not, whether the employee is needed to provide psychological comfort to the patient or to assist in the patient’s recovery. If the employee is needed to provide care only intermittently, the certification must indicate the probable duration of the need.

		The final regulations allow the employer to contact the employee’s health care provider – with the permission of the employee – to clarify the information in a medical certification or to confirm that the certification was provided by the health care provider. Such an inquiry may not seek additional information regarding the employee’s condition. If an employee is on FMLA leave concurrently with a workers’ compensation absence, and the applicable state workers’ compensation law permits direct contact between the employer or its representative and the employee’s workers’ compensation health care provider, the employer is free to follow the provisions of the State statute.

	B.	Second Opinions and Disputes

		There are times when an employer may have reason to question an employee's original medical certification. If the employer doubts the validity of the certification, it may, at its own expense, require the employee to obtain a second certification from a different health care provider chosen by the employer. An employer must reimburse an employee for any reasonable "out-of-pocket" travel expenses incurred in obtaining the second opinion.

		Importantly, the health care provider cannot be employed on a regular basis by the employer. In addition, the employer may not regularly contract with or utilize the services of the provider unless the employer is located in an area where access to health care is very limited (e.g., a rural area with only one (1) or two (2) doctors).

		If there is a conflict between the first and second medical opinions, the employer may require the employee to obtain a third opinion from a health care provider jointly approved by the employer and the employee. The third opinion, which the employer must also pay for including any "out-of-pocket" travel expenses of the employee, will be final and binding on both the employer and employee. The employer and employee must each act in good faith to reach an agreement on the third provider. Failure to act in good faith will result in either the first opinion (employer's failure) or second opinion (employee's failure) binding the parties.

		Pending the ultimate resolution of an employee's entitlement to leave, the employee is provisionally entitled to all the benefits of the FMLA, including maintenance of group health benefits. If the certifications ultimately establish that an employee is not entitled to FMLA leave, the leave will not be counted as FMLA-qualifying and may be treated as either paid or unpaid leave under the employer's existing leave policies (29 C.F.R. 825.307(a)(2)).

	C.	ADA Issues Related to Certification

		Allowing an employer to require medical certification from an employee requesting medical leave raises issues under the Americans with Disabilities Act (ADA). Under the ADA, "disability" is defined to include any physical or mental impairment that substantially limits a major life activity. Temporary conditions, such as pregnancy, are not considered "disabilities" under the ADA.

		However, it is likely that many (although not all) employees eligible for leave under the FMLA will qualify as "disabled" under the ADA. For example, heart conditions requiring ongoing treatment, infection with (and complications from) the HIV virus, and most cancers are considered "serious health conditions" under the FMLA, as well as "disabilities" under the ADA. Therefore, employees who have these conditions are entitled to the protections of both laws.

		Under the ADA, an employer is prohibited form requiring its current employees to submit to a medical examination unless the examination is "job-related and consistent with business necessity". In addition, the ADA prohibits inquiries into whether an employee is an individual with a disability and into the nature and severity of the disability.

	On the other hand, the FMLA permits an employer to require its employees to provide written certification from a health care provider to verify the need for medical leave. The certification provisions of the FMLA implicate the ADA because the employee may be required to provide information relating to the existence of a disability, or to its nature and severity. To avoid potential ADA violations, employers must ensure that all verifications of leave requests are "job-related and consistent with business necessity".

D.	Privacy Issues and Certification

	There are some privacy issues that arise with respect to an employer's requirement of written medical certification from employees who request medical leave. Under the ADA, an employer must keep information concerning a disabled employee's medical condition confidential. The information must be maintained in separate medical files, and access to the files must be restricted to those who have a specific need for that information. Thus, an employer must keep confidential a written certification verifying an employee leave request based on a condition that would also allow the employee protection under the ADA.

	The FMLA regulations allow employers to request recertification of a serious health condition. If the leave is for pregnancy, or a chronic or permanent/long-term condition, recertification may be requested no more often than every thirty (30) days unless:

	1.	circumstances described by the previous certification have changed significantly (e.g., the severity of the condition, the duration or frequency of absences); or

	2.	the employer receives information casting doubt upon the employee’s stated reason for the absence.

	The regulations provide that if the minimum duration of the employee’s incapacity specified on a medical certification is more than thirty (30) days, the employer may not request recertification until the minimum duration has passed unless:

	1.	the employee requests a leave extension;

	2.	circumstances described by the original certification have changed significantly (e.g., duration of the illness); or

	3.	the employer receives information which casts doubt upon the continuing validity of the original certification.

	Any recertification requested by the employer shall be at the employee’s expenses unless the employer provides otherwise.

E.	Return-to-Work Certification

	The FMLA regulations allow employers to require an employee on leave to report periodically on whether or not s/he plans to return to work.

	As a condition of restoration of employment, an employer may have a uniformly-applied policy requiring all similarly situated employees (i.e., same occupation, same serious health condition) who take leave for their own serious health conditions to obtain certification from their health care providers that they are able to resume working. In our case, a properly executed and approved Leave of Absence Form is required. Certification of an employee's fitness to return to work is only to be requested with regard to the particular illness that caused the need for FMLA leave (29 C.F.R. 825.310).

	If an employee needs an extension of leave, or if the amount of leave originally requested is no longer necessary, the employer may require that the employee provide "reasonable notice" (i.e., within two (2) business days) of the changed circumstances, if the changed circumstances are foreseeable.

	An employer must provide each employee requesting leave with notice if the employer will require "fitness-for-duty" certification. This notice must be given at the time of leave or immediately after leave commences. An employer may not require a second fitness-for-duty certification. If an employee fails to submit the required fitness-for-duty certification, the employer may delay the employee's restoration to his/her position unless the employer failed to provide the required notice (29 C.F.R. 825.310(f)). An employer is not entitled to certification of an employee's fitness to return to duty when the leave is intermittent.

	According to the Wage and Hour Division, the certification provided by an employee need only be a simple statement that an employee is able to return to work. With the employee's permission, a health care provider engaged by the employer may contact the employee's health care provider to clarify the employee's fitness to return to work. If this provision is invoked, according to the Labor Department, the employer may not delay the employee's return to work while that contact is being made.

F.	Failure to Satisfy Certification Requirements

	If an employee's leave is foreseeable, failure to provide timely certification could result in the employer delaying the taking of leave until the certification is provided. If the need for leave is not foreseeable, an employee must provide the certification within the time frame allowed by the employer (at least fifteen (15) days) or "as soon as reasonably possible under the particular facts and circumstances" (29 C.F.R. 825.311(b)). For example, a medical emergency may prevent the employee from providing certification within the allotted time. However, if the employee fails to provide certification within a reasonable time under the particular circumstances, the employer may delay the continuation of leave. If an employee never provides the requested certification, the leave is not FMLA leave.

G.	Leave as a "Reasonable Accommodation" Under the ADA

	The Americans with Disabilities Act (ADA) requires employers to provide a "reasonable accommodation" to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can be shown that the accommodation would impose an undue hardship on the business. The ADA defines "undue hardship" as "an action requiring significant difficulty or expense, when considered in light of [certain] factors . . ." In determining whether an accommodation would pose an undue hardship the following factors must be considered:

	1.	the nature and cost of the accommodation needed;

	2.	the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

		3.	the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type and location of its facilities; and

		4.	the type of operation or operations of the covered entity, including the composition, structure and functions of the work force of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.

		In addition, the ADA prohibits discrimination against an individual, whether disabled or not, based on that individual’s relationship to a person with a disability. Thus, an employee with a disabled spouse, child or parent cannot be discriminated against with regard to employment benefits and other privileges of employment.

		The Appendix to the Equal Employment Opportunity Commission (EEOC) regulations implementing the employment provisions of the ADA defines a reasonable accommodation as "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." This includes, among other things, "part-time or modified work schedules".

		The EEOC’s Technical Assistance Manual states that an employer does not have to provide a reasonable accommodation to a non-disabled individual simply because s/he has a relationship with a disabled individual. Therefore, under the ADA, an employer would not have to allow a non-disabled employee to take leave to care for a spouse, child or parent with a disability.

		The FMLA provides coverage, albeit limited, in this situation where none exists under ADA. The FMLA requires an employer to provide its employees with up to twelve (12) weeks of unpaid leave to care for a spouse, child, or parent with a "serious health condition". Most conditions that qualify as disabilities under the ADA also qualify as "serious health conditions" under the FMLA, so a non-disabled employee can use the FMLA to take leave to care for a disabled spouse, child, or parent.

Intermittent Leave

An employee may take leave intermittently or on a reduced leave schedule for the birth or adoption (or foster care placement) of a son or daughter only if the employee and employer agree to such an arrangement.

Leave taken to care for a child, spouse, or parent with a serious health condition, or in the case of an employee’s own serious health condition, can be taken intermittently or on a reduced leave schedule "when medically necessary".

The regulations discuss the term "when medically necessary" and provide that the treatment regimen and other information described in a medical certification of a serious health condition meets the requirement for certification of the medical necessity of intermittent leave or leave on a reduced leave schedule.

The FMLA defines "intermittent leave" as leave taken in separate blocks of time due to a single illness or injury. Examples include leave taken on an occasional basis for doctor’s appointments, or leave taken several days at a time spread over a six (6) month period, such as for chemotherapy. A "reduced leave schedule" is a change in the employee’s schedule for a period of time, normally from full-time to part-time. This would include a situation where an employee with the employer’s agreement, works part-time after giving birth to a child. Other examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or a pregnant employee who takes leave intermittently for prenatal examinations or periods of severe morning sickness. The final regulations provide that reduced schedule leave and intermittent leave for personal medical leave is limited solely to those times which are scheduled for treatment, recovery from treatment, or recovery from illness.

Intermittent leave or leave taken on a reduced schedule will only reduce the total amount of leave by that amount actually taken. For example, if an employee takes four (4) hours of leave for medical treatment, s/he has only used four (4) hours of the twelve (12) weeks of leave allowed. Leave taken intermittently will not affect the exempt status of an employee who is otherwise exempt from the overtime requirements of the Fair Labor Standards Act (FSLA).

Intermittent leave or leave on a reduced leave schedule may be taken in any size increments, although an employer may limit leave increments to the shortest period of time that the employer’s payroll system uses to account for absences or use of leave.

If an employee normally works a part-time schedule, the amount of leave to which the employee is entitled is determined on a pro-rate basis by comparing the reduced schedule with the employee’s normal schedule.

Example:

Janice, an employee who normally works thirty (30) hours per week, works only twenty (20) hours per week under a reduced leave schedule. Janice’s ten (10) hours of leave constitutes one-third of a week of FMLA leave for each week she works the reduced schedule.

Although the FMLA does not specifically state how many hours are in a workweek (especially important for purposes of intermittent leave), regulations under the FLSA are informative. The FLSA provides that the workweek includes "all the time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace". Thus, it is likely that an employee’s "workweek" will simply consist of the number of hours s/he usually works. For example if an employee works twenty-five (25) hours a week, his/her leave period will consist of twelve (12) weeks of twenty-five (25) hours (200 hours) and any intermittent leave taken will count against this time.

An employee may request intermittent leave for foreseeable planned medical treatments. In this situation, the FMLA allows the employer to transfer the employee temporarily to an alternative position with equivalent pay and benefits, if the new position will better accommodate recurring periods of leave than the employee’s regular position. As expressed by the Senate Labor Committee, allowing leave intermittently or on a reduced leave schedule allows employers to retain "trained and experienced" employees part-time rather than hire full-time temporary replacements. The alternative position must have equivalent pay and benefits, although not necessarily equivalent duties.

Example:

Ralph, an employee of ABC Company, requests FMLA leave on increments of four (4) hours per day. ABC Company may transfer Ralph to a part-time job paying the same hourly rate and the same benefits as Ralph’s previous job. The company may not eliminate benefits which otherwise would not be provided to part-time employees. However, the company may proportionately reduce earned benefits (e.g., vacation leave), if such a reduction is normally made for its part-time employees.

An employer may not transfer an employee to an alternative position to discourage the employee from taking leave or to impose a hardship on the employee. By way of illustration, a white collar employee may not be assigned to perform laborer’s work, or an employee working a day shift may not be reassigned to the graveyard shift. Once the employee no longer needs to continue the leave, s/he must be returned to the same or equivalent job immediately.

Spouses Employed by the Same Employer

The Family and Medical Leave Act (FMLA) has a provision designed to eliminate an employer’s incentive to refuse to hire married couples. Where both spouses are employed by the same employer, the total amount of leave they can take may be limited to twelve (12) weeks for the birth or adoption of a son or daughter or to care for a sick parent.

Example:

Bob and Mary, a married couple, both work for X Corp. Mary gives birth to a child, and both Mary and Bob decide to take leave to care for the child. Each one takes four (4) weeks of leave (a total of eight (8) weeks between them) and then Bob returns to work. Mary is entitled to four (4) more weeks of family leave.

If the leave is requested for either the husband’s or the wife’s own serious health condition, or the serious health condition of the couple’s son or daughter, the limitation provided in the FMLA does not apply. For example, if an employee takes twelve (12) weeks of leave because of her own serious health condition, her husband also could take twelve (12) weeks of leave to care for her. If the couple’s child became seriously ill, each could take twelve (12) weeks of leave to care for the child, but total FMLA taken by any employee cannot exceed twelve (12) weeks per employee.

If both the husband and wife use a portion of the twelve (12) weeks of leave for either the birth or adoption of a child or to care for a sick parent, each would be entitled to the remainder of the twelve (12) weeks for another purpose.

Example:

Bob and Mary each take six (6) weeks of leave for the birth of their child. Both Bob and Mary could later use an additional six (6) weeks due to a personal illness or to care for a sick child.

The FMLA’s regulations also point out that many State pregnancy disability laws specify a period of disability either before or after the birth of a child. Such periods are considered FMLA leave for a serious health condition of the mother, and are not subject to the combined limit for spouses (29 C.F.R. 825.202(c)).

Workers’ Compensation and the FMLA

It is the Department of Labor’s (DOL) position that if an employee qualifies for job-protected Family and Medical Leave Act of 1993 (FMLA) leave, the employee may not be forced to return to work in a "light duty" position before the employee’s FMLA leave entitlement has expired. Forcing the employee to return to such a position would violate his/her right to be restored to the same or an equivalent position. Under State workers’ compensation statutes, an employee’s worker’s compensation benefits may be suspended if the employee refuses a light duty assignment. According to DOL, the FMLA does not prohibit such a result. Thus, if an employee is injured on the job, and the injury also qualifies as a "serious health condition," the employee will qualify for both workers’ compensation and FMLA leave. This would allow the employee to receive workers’ compensation benefits for replacement of lost wages, and have his/her health benefits maintained under the FMLA. If, as part of the workers’ compensation process, the employee is offered a medically-approved "light-duty" position, the employee may decline the position and instead choose to exercise his/her FMLA rights. If the employee accepts the "light duty" position in lieu of FMLA leave or returns to work before the twelve (12) weeks are up, the employee retains his/her right to the original or an equivalent position until twelve (12) weeks have passed.

With regard to the FMLA’s provisions regarding substitution of paid leave for unpaid FMLA leave, an employee who incurs a work-related illness or injury must elect whether to receive paid leave from the employer or workers’ compensation benefits. If the employee has elected to receive workers’ compensation benefits, the employer cannot require the employee to substitute any paid vacation or other leave that is covered by the workers’ compensation fund. Payments provided by State workers’ compensation funds are not considered "accrued paid medical or sick leave" within the meaning of the FMLA. The workers’ compensation absence can be counted against the employee’s FMLA leave entitlement if it is properly designated as FMLA leave by the employer.

Pay and Benefits

	A.	Leave Requirements and Continuation of Benefits

		The Family and Medical Leave Act (FMLA) allows eligible employees to take up to twelve (12) weeks of unpaid family or medical leave for one (1) of several specified reasons. An employee is not required to use his/her accrued vacation leave or personal leave first before taking leave under the FMLA.

	Employees are not required to take twelve (12) consecutive weeks of leave, but instead may take leave on an intermittent basis. Certain conditions must be met before an employee can take leave intermittently or on a reduced leave schedule.

	The coordination of family and medical leave and continued benefits coverage is one (1) of the most important provisions of the law. The FMLA requires that the health coverage of an employee who takes family or medical leave be maintained by the employer for the duration of the leave. There are special considerations with regard to accrual of benefits under pension plans, COBRA coverage, and continuation of other benefits during leave.

B.	Paid Leave and Unpaid Leave

	Family and medical leave granted under the Family and Medical Leave Act of 1993 (FMLA) may be both paid and unpaid leave.

C.	Paid Leave and the FLSA’s "Pay Docking" Policy

	The final regulations clarify the circumstances under which employers may deduct unpaid FMLA qualifying leave from employees’ pay without the employees losing their exemption status under the Fair Labor Standards Act (FSLA).

	The FSLA provides that those employed "in a bona fide executive, administrative, or professional capacity" are exempt from the act’s overtime compensation provisions (29 U.S.C. 213(A)(1)) that require employers to pay employees 1-1/2 times their regular pay for any hours they work over forty (40) in a work week. To meet one (1) of the three (3) exemptions, an employee must meet certain criteria:

	1.	the employee must be compensated on a "salary" basis as defined by the FSLA;

	2.	the level of salary received must meet certain minimum standards; and

	3.	the employee’s duties and responsibilities must fall into certain specified categories, generally showing responsibility, independent judgment, and creativity.

		The regulations provide that deductions may be made from the salaries of executive, administrative, or professional employees "for any hours taken as intermittent or reduced FMLA leave within a workweek, without affecting the exempt status of the employee". The regulations add that it does not matter if the FMLA leave is paid or unpaid or if such records of the FMLA leave must be kept under the law – this is not relevant to the determination of the exemption status of employees.

		If a salaried employee is paid in accordance with the fluctuating workweek method of payment, the employer, during the work period when the employee takes intermittent leave, may pay the employee at an hourly rate for only hours worked, including time worked at time and one-half, without violating the FLSA. According to the regulations, the change to payment on an hourly basis includes the entire period during which the employee is taking intermittent leave, including weeks in which no leave is taken. If an employer decides not to convert such an employee’s compensation to hourly pay, the employer may not deduct from the employee’s salary for FMLA leave absences.

		The regulations state that this special exception to payment on a salary basis "applies only to employees of covered employers who are eligible for FMLA leave, and to leave which qualifies as (one (1) of the four (4) types of) FMLA leave". Deductions may not be made from the salary of an exempt employee who works for an employer with fewer than fifty (50) employees, or where the employee has not worked the requisite 1,250 hours to qualify for FMLA leave. The regulations state that the deductions also may not be made from the pay of exempt employees for any leave that does not qualify for FMLA leave or for leave which is more generous than the FMLA requires.

		In August, 1992, the Department of Labor provided some relief for public employers on this issue, but the rule does not affect the private sector. DOL’s final rule allows State and local governments under certain conditions to dock the pay of salaried employees who work less than a full day without those employees becoming subject to the overtime provisions of the FLSA.

	D.	Substitution of Paid Leave for Unpaid Leave

		Family and medical leave does not have to be unpaid leave if the employee has unused vacation leave, personal leave, or sick leave. The FMLA allows an eligible employee to elect that certain accrued leave be substituted for unpaid leave mandated by the act. The purpose of this provision is to lessen the impact of the loss of wages due to family and medical leaves. Since many employees cannot afford to take a full twelve (12) weeks of unpaid leave, this provision allows them to limit the financial burden that may arise as a result of having to take family and medical leave.

		In the case of leave for the birth or adoption of a child, or the serious health condition of a spouse, child, or parent, an eligible employee may use any accrued vacation leave or personal leave for any part of the leave provided for under the FMLA (29 C.F.R. 825.207(b)). For example, if an employee has accrued three (3) weeks vacation leave and two (2) weeks of "sick" leave, s/he may use the five (5) weeks of accrued paid leave as part of the twelve (12) weeks of family and medical leave under the FMLA. An employer may not override an employee’s initial election to substitute paid leave for FMLA leave nor place limitations on its use. For example, an employer may not require an employee to take a minimum of a full week of leave at one time. If the employee takes five (5) weeks of paid leave, the employer must only provide an additional seven (7) weeks of unpaid leave for a total of twelve (12) weeks.

		The FMLA allows the substitution of paid vacation leave, personal leave, or sick leave for leave taken for an employee’s own serious health condition or the serious health condition of the employee’s spouse, child, or parent. However, an employer is not required to provide paid sick leave in any situation where it would not normally provide such paid leave (29 C.F.R. 825.207(c)). An employee may substitute paid sick or medical leave for his/her own serious health condition or to care for a seriously ill spouse, child, or parent only if the employer’s leave plan allows paid leave to be used for that purpose.

		For employees commencing a medical leave of absence, which runs simultaneously with FMLA leave, earned unused sick pay, as well as any approved sick bank pay, must be exhausted at the beginning of the medical leave of absence. Employees may then designate that any earned unpaid vacation may be used before the FMLA leave becomes unpaid.

	An employee who is injured on the job must elect either workers’ compensation benefits or paid leave. Therefore, if an employee is receiving workers’ compensation benefits, the employer cannot require substitution of vacation or other leave. If the employer properly designates the leave as FMLA leave, the workers’ compensation absence can be counted against the employee’s FMLA leave entitlement.

	Regardless of how many weeks of paid leave an employee decides to use for family or medical leave, the employee is still entitled to the remainder of the twelve (12) weeks leave time on an unpaid basis.

	If an employee substitutes paid leave, s/he can be required only to comply with the requirements of the employer's leave plan, and not any stricter FMLA requirements (e.g., notice or certification). Where an employee complies with an employer’s less stringent procedural leave requirements, the employer may not delay or deny FMLA leave on the grounds that the employee has not complied with FMLA requirements. However, where an employee chooses to substitute accrued paid vacation or personal leave for unpaid FMLA leave for a serious health condition, an employer can require the employee to comply with any less stringent medical certification requirements of the employer’s sick leave program.

E.	Designation of Leave

	It is always the employer’s obligation to designate leave, paid or unpaid, as FMLA leave (29 C.F.R. 825.208(a)(2)). Thus, even if an employee does not request that an absence be counted as FMLA leave, the employer may so designate the absence assuming all employer and employee qualifications are met (Wage and Hour Opinion Letter FMLA-68 (July 21, 1995)). The employer’s designation of paid leave as FMLA leave may be made only on the basis of information provided by the employee. The employer’s notification to an employee of an FMLA designation may be oral. However, the employer must confirm the FMLA designation in writing no later than the next regular payday (unless less than a week remains until the next payday). If the employer has notice that the employee’s leave qualifies as FMLA leave and does not designate the leave as FMLA leave, the employer may not designate the leave retroactively unless:

	1.	the employee has been out of work and the employer does not learn of the reason for leave until after the employee returns (in which case the employer must designate the leave upon the employee’s return to work); or

2.	the employer has provisionally designated leave as FMLA leave and is awaiting receipt of medical certification or other reasonable documentation.

Similarly, if the employee gives notice of the reason for the leave later than two (2) weeks upon returning to work, the employee is not entitled to the protection of the FMLA.

In an opinion letter, DOL’s Wage and Hour Division stated that it would be improper to include any hours worked by the employee while on FMLA leave toward his/her twelve (12) week allotment, where the employer and employee have agreed that the employee would continue to work on an occasional basis (Wage and Hour Opinion Letter FMLA-67 (July 21, 1995)).

If either party designates the leave as FMLA leave after the leave has begun (e.g., an employee requests an extension of paid leave with unpaid leave), the paid period may be retroactively counted as FMLA leave as long as it qualified as FMLA leave.

Example:		Jim takes sick leave for an illness which then turns into a serious health condition. If Jim gives notice of the need for an extension of leave, the entire leave period of the serious health condition may be counted as FMLA leave.

If an absence does not originally qualify for FMLA leave, but later develops into an FMLA qualified absence, the portion of the leave which qualifies under FMLA may be counted as FMLA leave.

Example:		Joe takes a two (2) week vacation for a ski trip and suffers a severe accident requiring hospitalization beginning the second week. The second week of the vacation may be counted as FMLA leave.

	F.	Accrual of Employment Benefits

		An employee who takes family and medical leave is not entitled to the accrual of additional benefits or seniority that would have occurred during the period of leave (29 C.F.R. 825.215(d)(2)). However, employees are entitled to accrue hours of service (service credit) during periods of paid leave. A period of FMLA leave (regardless of whether it is paid or unpaid) must be treated as "continued service" (i.e., no break in service) for purposes of vesting and eligibility to participate in pension or retirement plan (29 C.F.R. 825.215(d)(4)).

		It is irrelevant whether the benefits are provided through the employer’s practices or written policies or through an "employee benefit plan" as defined under the Employee Retirement Income Security Act of 1974 (ERISA). ERISA defines an "employee benefit plan" as an employee welfare benefit plan, an employee pension benefit plan, or a plan that is both.

		Although employment benefits do not accrue during the period of leave, an employer may not deprive an eligible employee who takes family or medical leave of any previously accrued benefits. Thus, when the leave period begins, an employee enters a period of "limbo" and his/her accrued employment benefits are frozen until the leave period ends.

		Example: Employees of X Company accrue four (4) hours of sick leave every two (2) weeks. At the time she takes leave for the birth of her child, Tina has accrued seventy-two (72) hours of sick leave. Assuming that she does not use these accrued hours during her statutory leave period, when Tina returns she will still have seventy-two (72) hours of accrued sick leave.

	G.	Health Benefits and FMLA Leave

		The FMLA provides that during a period of family or medical leave, an employer (public or private) must maintain coverage under its "group health plan ... at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of such leave" (29 C.F.R. 825.209(a)). A "group health plan" is defined in 5000(b)(1) of the Internal Revenue Code of 1986 as a "plan of, or contributed to by, an employer (including a self-insured plan) to provide health care" to employees.

		Example 1: Under X Co.’s health plan, employees must contribute $80 a month for group health insurance premiums. If Frank takes family leave under the FMLA, he is entitled to continuation of his health insurance during the period of leave, but he must pay the $80 month premium contribution. X Co. must continue to pay its portion of the premium.

		The employer is not responsible for maintaining or restoring non-employment related health benefits paid directly by employees through voluntary deductions (e.g., individual insurance policies) (29 C.F.R. 825.209A).

		An employer does not have to provide health benefits to an employee taking family or medical leave if the employer does not provide such benefits at the commencement of the leave period. However, if an employer establishes a health insurance plan during an employee’s leave, the employee is entitled to health benefits beginning on the date the employee would have been entitled to the benefits if s/he had not taken leave.

		Example 2: One June 1st, Bob begins twelve (12) weeks of medical leave for a serious illness. At the time Bob’s leave begins, his employer does not offer health insurance. On July 1st, Bob’s employer establishes a group health insurance plan for its employees. Bob’s entitlement to health benefits under the plan begins on July 1st.

		Also, if an employer changes health benefits or plans while an employee is on FMLA leave, the employee is entitled to the changed benefits to the same extent as if the employee were not on leave (29 C.F.R. 825.209(c)). An employee on FMLA leave must be given notice of any opportunity to change plan or benefits.

		If an employee chooses not to retain health coverage during a period of FMLA leave, the employee is entitled to be reinstated on the same terms when s/he returns from leave. Thus, the employee cannot be subject to any qualifying period, physical examination or exclusion of pre-existing conditions (29 C.F.R. 825.209(C)). An employee on FMLA leave must be given notice of any opportunity to change plans or benefits.

	If an employee chooses not to retain health coverage during a period of FMLA leave, the employee is entitled to be reinstated on the same terms when s/he returns from leave. Thus, the employee cannot be subject to any qualifying period, physical examination or exclusion of pre-existing conditions (29 C.F.R. 825.209(e)).

H.	Employee Payment of Health Premiums

	The regulations address the issue of how an employee may pay his/her share of the health premiums while on FMLA leave. If the FMLA leave is substituted paid leave, the employee’s premiums must be paid by the usual method (e.g., payroll deduction). If the leave is unpaid, the employer may request the employee to pay his/her share in any of the following ways (29 C.F.R. 825.210(c):

	1.	payment due at the same time as it would be if made by payroll deduction;

	2.	payment due on same schedule as payments made under the Consolidated Omnibus Budget Reconciliation Act (COBRA);

	3.	payment prepaid pursuant to a cafeteria plan at the employee’s option; or

	4.	another system voluntarily agreed to by employer and employee.

	The employer’s existing rules for payment by employees on unpaid leave would be followed, as long as prepayment is not required. Also, the employer must provide the employee with advanced written notice of the method to be used.

	The regulations do not contain explicit guidelines to resolve differences between employers and employees with respect to the repayment of health care premiums when the employee returns to work from FMLA leave. A Wage and Hour Division opinion letter states that "such arrangements should be reasonable and not impose unreasonable hardships or difficulties on either party. For example, the employer should not attempt to recover payments all at once by deducting the entire amount due from the employee’s first paycheck. On the other hand, the employee should not attempt to stretch the payments out over an unreasonably long time. [DOL] would view additional deductions equal to a regular group health plan premium as reasonable" (Wage and Hour Opinion Letter FMLA-65 (July 13, 1995)).

I.	Employer’s Obligation

	The employer’s obligation to maintain health coverage ceases if an employee’s premium payment is more than thirty (30) days late. Prior to dropping group health coverage for an employee whose payment is late, the employer must provide written notice to the employee that payment has not be received fifteen (15) days before coverage will cease. The employer may recover the employee’s share of any missed premium payments if the employer pays the premium to maintain the employee’s coverage. If coverage lapses for nonpayment, the employee must still be restored to coverage upon his/her return from leave. In this situation, the employee may not be required to requalify for coverage, wait for open enrollment, etc. Even if an employee fails to make timely premium payments, the employer’s other FMLA obligations continue.

	In some instances, an employer may want to maintain other benefits, such as life insurance, by paying the employee’s share of the premiums during unpaid FMLA leave. Since an employer must provide "equivalent benefits" to an employee upon the employee’s return from leave, the employer may have to pay the premiums to avoid a lapse in coverage. As noted in a Wage and Hour Opinion letter, "while FMLA regulates the maintenance of group health coverage by employers for periods of qualifying FLA leave, the law does not extend authority to the Department of Labor to require insurance carriers to waive provisions in their existing contracts with employees or otherwise bear a portion of the burden of maintaining health insurance for employees who take FMLA leave" (FMLA-64 (June 21, 1995)). The employer can recover these premiums regardless of whether the employee returns from leave.

J.	Premium Recovery When an Employee Quits

	An employer may recover health coverage premiums it paid for an employee on unpaid FMLA leave if the employee fails to return to work, unless the reason the employee does not return is due to (29 C.F.R. 825.213(a)):

	1.	the continuation, recurrence or onset of a serious health condition which would entitle the employee to FMLA leave; or

	2.	other circumstances beyond the employee’s control (e.g., spouse transferred to job more than seventy-five (75) miles from employee’s worksite). (A parent’s decision to stay home with a newborn after the leave period would not be considered to be "circumstances beyond the employee’s control." If the newborn, however, had a serious medical condition requiring immediate medical attention, the circumstances would be beyond the employee’s control.)

	When an employee fails to return to work for any other reason, the health premiums paid by the employer are a debt owed by the non-returning employee to the employer. The employer may recover its share of the premiums through deductions from any amount owed to the employee (e.g., unpaid wages, vacation pay, etc.) as long as the deductions are consistent with applicable State and Federal laws. The employer also may sue the employee to recover the premiums.

K.	COBRA Coverage

	Under the Employee Retirement Income Security Act (ERISA), every employer-sponsor (with twenty (20) or more employees) of a group health plan must ensure that each covered employee under the plan would lose coverage as result of a "qualifying event" will be entitled to elect continuation coverage under the plan. A "qualifying event" includes "the termination (other than by reason of such employee’s gross misconduct), or reduction of hours of the covered employee’s employment" (29 U.S.C. 1163).

	Employees who have lost their jobs may continue on the employer’s health plan for up to eighteen (18) months, at the employee’s expense (not to exceed 102 percent of the applicable premium), at the same group rate for the same coverage provided to current employees (29 U.S.C. 1161 – 1168). These ERISA provisions are known as "COBRA" requirements because they were enacted as part of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).

		An IRS notice discussing the relationship between FMLA and COBRA clarifies that leave taken under the FMLA does not constitute a qualifying event under COBRA (29 C.F.R. Part 825 Appendix E, A-1). If an employee on family or medical leave decides not to return to work at the end of the FMLA leave, however the decision not to return would be a qualifying event that triggers COBRA coverage. At that point, the employee would cease to be entitled to be under the FMLA, and on the last day of FMLA leave the eighteen (18) month benefits continuation period mandated by COBRA would begin. In this regard, the Senate Labor Committee stated that the purpose of the FMLA is to provide family and medical leave to employees, and that the law is not to be used by employees as a means of delaying a qualifying event.

		A possibility for employee abuse exists if the COBRA continuation coverage period does not begin until an employee makes it clear that s/he will not be returning to work. An employee who knows that s/he will not be returning to work after the leave period ends has no incentive to inform the employer of his/her intention not to return. If the employee informs the employer before the leave period begins, the continuation coverage period will begin immediately. However, by waiting until the end of the twelve (12) week leave period to inform the employer, the employee would receive an extra twelve (12) weeks of group health benefits coverage. This could present a problem for employers since an employee cannot be asked to guarantee his/her return to work.

		An IRS notice discussing the relationship between FMLA and COBRA (29 C.F.R. Part 825 Appendix E, A-1) clarifies that where an employee informs the employer that the employee will not be returning to work at the end of the FMLA leave, the day the employee informs the employer constitutes a qualifying event. Accordingly, the maximum COBRA coverage period is measured from the date that the employee informed the employer. An employee who waits until the end of the twelve (12) period to inform the employer that s/he will not be returning from leave simply to delay the eighteen (18) month COBRA continuation period receives the advantage of the extra twelve (12) weeks of health coverage.

	L.	Does Nonpayment of FMLA Premiums Cause a Qualifying Event?

		The FMLA regulations provide that employees have a thirty (30) day grace period for late premium payments. After that date, the employer can decide to pay the full premium for the duration of the leave and recover the amount it paid once an employee returns to work. Self-insured employers can recover their share of allowable COBRA premiums, excluding the two percent (2%) administrative fee.

		The regulations, however, also provide that employers can terminate health coverage if premiums are not paid by the end of the grace period. The IRS notice (29 C.F.R. Part 825 Appendix, E, A-1) clarifies that a situation where an employee stopped paying his/her FMLA premiums for coverage under the employer’s group health plan will not constitute a qualifying event. Therefore, the qualifying events for purposes of COBRA coverage will be the date the employee informs the employer that s/he will not be returning to work or the last day of FMLA leave.

FMLA Leave Notification & Administrative Requirements

	A.	Administrative Requirements

		The Family and Medical Leave Act of 1993 (FMLA) requires employers to keep and maintain records pertaining to compliance with the FMLA. An employer’s obligation to keep records under the FMLA is based on similar provisions under the Fair Labor Standards Act (FSLA). Also like the FLSA, the FMLA contains a provision that requires employers to post a notice summarizing the provisions of the law.

		Some view the administrative requirements for eligible employees requesting leave under the FMLA as more burdensome than those on employers. First, the law requires an employee to provide the employer with notice when leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment. Second, the certification provisions allow an employer to require an employee to obtain medical certification to support a request for medical leave. Certification may also be required to support an employee’s claim that s/he is unable to return to work after the leave period expires because of the continuation of the employee’s serious health condition, or the serious health condition of a child, spouse or parent. As might be imagined, employer representatives who track the exercise of leave rights and administer related records have a different perspective of the burdens imposed by the statute.

	B.	Employee Notice

		In certain situations where family or medical leave is foreseeable, the Family and Medical Leave Act of 1993 (FMLA) requires an eligible employee to provide his/her employer with notice of the employee’s intention to take leave.

		If an employee plans to take leave for a birth, adoption, placement in foster care or planned medical treatment, and the need for the leave is foreseeable, the employee must provide the employer with at least thirty (30) days’ notice (29 C.F.R. 825.302(a)). If an employee fails to give thirty (30) days’ notice of foreseeable leave, and the employee has no reasonable excuse, the employer may delay the taking of FMLA leave until at least thirty (30) days after the date the employee provides notice of his/her need for leave (29 C.F.R. 824.304(b)). It must be clear that the employee had actual notice of the FMLA notice requirements before his/her leave may be delayed due to the lack of required notice. The regulations provide that an employer’s proper posting of the required notice at the worksite where the employee is employed will satisfy this condition. The employer’s failure to post the required FMLA notice might excuse the employee from the requirement of advance notice of the need for leave. In addition, the need for leave and the approximate date leave would begin must be clearly foreseeable to the employee thirty (30) days in advance of the anticipated leave.

		If leave is required because of a medical emergency or other unforeseeable event, an employee only has to provide the employer with such notice "as is practicable" under the facts and circumstances of the particular case. This might be caused by a premature birth, a child suddenly becoming available for adoption or a medical emergency requiring immediate treatment. If it is not possible for the employee to give at least thirty (30) days’ notice of foreseeable leave, the phrase "as soon as practicable" would ordinarily mean "at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee". If the need for leave is not foreseeable, the employee may provide notice either in person or by telephone, telegraph, fax machine or other electronic means. Notice also may be given by the employee’s spouse, family member or other responsible party if the employee is unable to personally provide notice.

		If leave is foreseeable based on a planned medical treatment, the FMLA imposes an additional obligation on the employee. In this situation, the employee taking leave must "make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer". What constitutes an "undue disruption" of the employer’s operations is not clear from the law itself; thus additional regulatory guidance is necessary. The regulations say that employees will be expected to consult with their employers prior to the scheduling of medical treatment in order to work out a schedule that best suits the needs of both the employer and the employee. If an employer has a legitimate reason, it may require an employee to attempt to reschedule treatment, "subject to the ability of the health care provider to reschedule the treatment and the approval of the health care provider as to any modification of the treatment schedule.

		A properly completed Leave of Absence is required. An employee must at least provide verbal notice sufficient to make the employer aware that the employee needs FMLA leave, and the anticipated start date and duration of the leave. The employee has to state that leave is needed for an expected birth or adoption.

		Employees are required to comply with the employer’s usual and customary notice and procedural requirements for requesting leave without pay.

		The employer is free to inquire further if it is necessary to have more information to determine whether FMLA leave is being sought, and to obtain details of the leave to be taken. Regarding medical conditions, for example, the employer may inquire further to determine if the leave is necessary due to a "serious health condition" within the meaning of the act, and seek certification in support of the leave request.

		Where intermittent leave is medically necessary, an employee is required to advise the employer of the reasons why this type of leave, or a reduced leave schedule, is necessary, and the schedule for treatments, if applicable. The certification submitted in connection with such leave also should include such information.

		The regulations state that the employee and the employer should attempt to work out a schedule that meets the employee’s needs without unduly disrupting the employer’s operations (subject to the approval of the health care provider). A Federal court in Georgia found that an employee failed to satisfy his notice obligations under the FMLA when he provided only four (4) days notice of a need for intermittent leave for a doctor’s appointment he had been aware of for two (2) months (Kaylor v. Fanin Regional Hospital, 3 Wage & Hour Cas. 2d 1856 (N.D. Ga. 1996)).

		While employers retain the right to waive employees’ violations of statutory or policy notice requirements, if no reasonable excuse exists for a failure to provide notice of foreseeable leave, it can be delayed until after thirty (30) days of the notification (29 C.F.R. 825.304(b)). However, in all such cases, it must be clear that the employee had actual notice of the FMLA notification requirements. This would be accomplished by showing that the required notice was posted at the worksite at which the worker is employed, and that the need for leave and approximate date it was needed was clearly foreseeable to the employee thirty (30) days in advance of the leave request.

		An employer may not require compliance with stricter FMLA notice requirements where less advance notice for covered leave is required by the employer’s paid leave plan, the provisions of a collective bargaining agreement or State law. For example, if either the employee or the employer elects to substitute paid leave under the employer’s vacation leave plan for FMLA leave, and the employer’s paid leave program imposes no prior advance notification requirements, no prior notification requirements would apply to FMLA leave taken in these circumstances.

	If employees determine that a period of leave must be extended beyond the date originally identified, the employer requires notice of the new circumstances. Moreover, the employer may obtain information on such changed circumstances through requested status reports.

C.	Responding to an Employee’s Request for Leave

	When an employer receives a request for leave from an employee, it should take a series of steps to ensure compliance with the FMLA. The following discussion, while not exhaustive, highlights most of the principal questions that employers should consider when evaluating requests for FMLA leave or when assessing whether other forms of leave and absence might count against an employee’s FMLA entitlement.

	1.	Leave Eligibility

		A threshold question will relate to the employee’s tenure with the organization, and the quantity of leave he or she has used within the preceding twelve (12) month period (however that period is measured). Thus, initial questions might include:

		a.	has the employee worked for the organization for twelve (12) months or more?

		b.	has the employee worked for the organization for at least 1,250 hours during the twelve (12) month period prior to the leave request?

		c.	does the employee work at a worksite at which the employer has at least fifty (50) employees working within a seventy-five (75) mile radius?

		d.	has the employee utilized his/her entire FMLA entitlement for the current twelve (12) month period prior to the current request or is additional leave time available?

		e.	are there special circumstances regarding this individual and the request for leave?

2.	Nature and Timing of Requested Leave

	The employer next must consider the identified purpose of the leave sought by the employee and whether it falls within the statute’s framework of protected leave. The employer might inquire:

	a.	does the requested leave involve an asserted "serious health condition" of the employee?

	b.	has the employee identified a serious health condition of a spouse, child or parent, triggering eligibility for family leave?

	c.	has the employee recently experience the birth of a child or received placement of a child through adoption or foster care?

	d.	do both the employee and his/her spouse work for the company and has the spouse already taken leave for the same reason or purpose?

	The answers to certain of these questions will, of course, trigger multiple follow-up inquiries. Is there any uncertainty regarding the familial relationship linked to the requested leave? Certain definitions are quite broad. For example, the terms "son" and "daughter" encompass biological, adopted and foster children, as well as stepchildren, legal wards or children of a person standing in loco parentis, who are either under eighteen (18), or over eighteen (18) and incapable of self-care because of a physical or mental disability. Yet, other types of asserted relationships may not fall within these terms.

	Additionally, the question of what constitutes a "serious health condition" is a major source of contention and confusion for employers. Has the claimed condition triggered inpatient hospitalization and treatment? If not, has there been continuing treatment by a health care provider involving a period of incapacity linked either to pregnancy or prenatal care or to a chronic serious health condition? Might the requested absence be needed to receive multiple treatments by a health care provider? Is the need for leave and treatment provided by a "health care provider" within the meaning of the law?

		Another important consideration that may come into play is whether the worker provided the employer adequate notice of the need for leave. Most of the FMLA’s requirements in this regard become effective when the need for leave is one that is "foreseeable". However, there are circumstances in which the need for leave clearly has been foreseeable, but the employee failed to provide appropriate notice. In such cases, the employer may consider whether it will delay approval of requested FMLA leave until that notice period is satisfied. This issue may arise most commonly in situations where the employee is undergoing a planned medical treatment but has not consulted with the employer or made any effort to schedule that treatment so as not to unduly disrupt the employer’s operations.

	3.	Certification of Need for Leave

		For many leave purposes covered by FMLA, the employee is required to provide a health care provider’s certification of a serious health condition. If the leave request relates to such a condition – either one affecting the employee directly or affecting his/her spouse, child or parent – such certification is required. Indeed, in the case of foreseeable leave, and employer may delay the taking of FMLA leave if the employee fails to provide timely certification (i.e., within fifteen (15) calendar days, if practicable) after it is requested by the employer.

		Whether the employee has submitted a certification form and whether it is completed adequately are initial key questions. From that point the employer must consider whether it desires to "question" that certification, either through contact by the employer with the individual who provided certification for the employee (only after the employee consents to such contact), or by seeking a second – and possibly a third - medical opinion. The employer’s desire for recertification during a period of extended FMLA leave may come into play, and the same questions regarding timely submission and adequacy of supplied information may be triggered.

4.	Type of Leave Requested

	Often the leave sought by an employee may relate to one continuous period in which the employee experiences a need to be away from work for reasons covered by the act. In such a case, where the employee is eligible and where documentation is provided in a manner consistent with policy, there may be a few additional questions for the employer to consider other than the way in which it will maintain operations and necessary tasks in light of that absence.

	Some distinct questions are raised by employee requests for intermittent or reduced schedule leave under the FMLA. These relate to both the purposes of the requests and the best means for an employer to accommodate such desires. Such questions include:

	a.	does the requested intermittent leave relate to the serious health condition of an employee or a family member, or is it intended to provide care for a newborn or a newly adopted/placed child?

	b.	are there other positions to which the employee might be transferred that might better accommodate needs for intermittent leave?

5.	Designation of Leave

	The obligation to designate absences as being FMLA-eligible resides with the employer, which effectively mandates a system to assess the purpose and classification of most (if not all) periods of absences. DOL regulations provide that this designation must take place, absent extenuating circumstances, within two (2) business days, and the employer must ensure that its leave and absence control systems are responsive enough to identify potentially qualifying absences and provide notification in all appropriate instances. In many cases, employers will wish to consider whether absences for other purposes – e.g., workers’ compensation-related absences, use of paid leave – should be counted toward the FMLA entitlement.

	6.	Treatment of Benefits Issues

		The act requires that employee coverage under group health plans be maintained during a period of FMLA leave under the same terms and conditions as would apply if the employee were not taking leave. In most instances, this requires the employee’s continued payment of his/her portion of benefits coverage costs (which may relate to individual coverage, family coverage options, or both), and the mechanics of such arrangements are established prior to or at the onset of leave.

	7.	Reinstatement After Leave

		At the conclusion of FMLA-protected leave, employees are to be restored to the same or an equivalent position. Among the issues to be considered upon return is whether the employee has to provide fitness-for-duty certification from a health care provider. The employer will need to ensure that this requirement has been satisfied.

	8.	Recordkeeping Obligations

		The FMLA requires employers to make, keep and preserve records that pertain to their obligations under the statute. DOL regulations specify required items, but employers have discretion to establish the form or manner in which the information is retained. These necessary elements include basic payroll and employee identification data, dates on which FMLA-eligible employees take leave, copies of employee notices of leave as well as general and specific notices given to employees, documents describing employee benefits and the employer’s policies, premium payments relating to benefits, documents reflecting disputes concern leave designation and other matters.

		All of these steps presume that the employer has satisfied basic requirements contained in the statute and regulations for communicating its FMLA leave policy (including posting requirements), and that it has advised employees taking leave of its expectations for medical certification and insurance premium payments. While not fully comprehensive, this eight (8) step analysis should cover most of the major points of FMLA compliance in responding to individual requests for leave.

D.	Employer Recordkeeping Requirements

	The recordkeeping requirements of the Family and Medical Leave Act of 1993 (FMLA) parallel those of Section 11(c) of the Fair Labor Standards Act (FLSA). An employer subject to the FMLA must make, keep and preserve records detailing the employer’s compliance with the law. Employers must keep the following records for no less than three (3) years and make them available for inspection, copying and transcription by the U.S. Department of Labor representatives upon request (29 C.F.R. 825.500(c)):

	1.	basic payroll and identifying employee data, including name, address and occupation; rate or basis of pay in terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid;

	2.	dates FMLA leave is taken by employees (leave must be designated in the records as FMLA leave);

	3.	if FMLA leave is taken in increments of less than one (1) full day, the hours of the leave;

	4.	copies of employee notices of leave furnished to the employer, if in writing, and copies of all general and specific notices given to employees as required under the FMLA and its regulations;

	5.	any documents describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leave;

	6.	premium payments of employee benefits; and

	7.	records of any dispute between the employer and an employee regarding designation of leave as FMLA leave.

	Records and documents relating to medical certifications, recertifications or medical histories of employees or employees’ family members, must be maintained in separate files and be treated as confidential medical records. The only persons who can obtain access to these confidential records are:

	1.	supervisors and managers who need to be informed of restrictions on the work or duties of an employee and necessary accommodations;

	2.	first aid and safety personnel if an employee’s physical or medical condition might require emergency treatment; and

	3.	government officials investigating compliance with the FMLA (29 C.F.R. 825.500(e)).

		Also, medical records created for purposes of the FMLA and the Americans with Disabilities (ADA) must be maintained in accordance with the ADA’s rules on the confidentiality of medical information (29 C.F.R. 825.500(g)).

	The general rule established by the statute is that the DOL may only require an employer to submit its books or records for review once during any twelve (12) month period. However, if the DOL has reasonable cause to believe an employer has violated the FMLA or its regulations, or if the DOL is investigating an employee complaint, it may request or subpoena and employer’s books or records at any time.

E.	Certification Procedures

	Another administrative duty placed on employees by the Family and Medical Leave Act of 1993 is the requirement that, at an employer’s request (written or verbal), an employee must provide a copy of a certification from a health care provider to justify a medical leave request. The regulations state that an employer must provide notice of the certification requirement each time it is requested (29 C.F.R. 825.305(a)). When requesting certification, the employer must advise the employee of the consequences of a failure to submit such documentation.

	Where leave is foreseeable and at least thirty (30) days’ notice has been provided, the employee should provide certification before the leave begins. If this is not possible, the employee must provide the requested certification to the employer within the requested time frame (which must be at least fifteen (15) days for submission), unless submission in this time frame is not possible despite the employee’s diligent, good faith efforts. In most instances, the request to the employee should be made at the time that the employee gives notice of the need for leave, or within two (2) business days thereafter. (If the leave is unforeseen, the request should be made within two (2) days after leave commences.)

		The certification must contain such items as:

		1.	the date on which the condition commenced;

		2.	the probable duration of the condition; and

		3.	the medical facts regarding the condition.

		It is the employee’s responsibility to find a health care provider who will provide a complete certification. The law does not require the certification to take any specific form.

		If an employer is not satisfied with an employee’s original certification, it may require the employee to obtain a second opinion from a health care provide approved by the employer. The employer must pay for this second opinion. If the first two (2) opinions conflict, the employer may pay for a third opinion to be delivered by a doctor mutually agreed upon by the employer and employee. A potential for a problem exists if the employer and employee cannot agree on a third doctor. The employer may make a preliminary designation of leave when the certification was not provided prior to the commencement of leave, or the employer is waiting for a second or third opinion. The employer may confirm or withdraw the designation depending on the results, even though the employee has returned to work.

		When the employer’s paid sick or medical leave plan contains less stringent certification requirements than those of the FMLA, and paid leave is being substituted for unpaid FMLA leave, only the employer’s less stringent certification requirements may be imposed.

		Under the FMLA, employers may adopt a requirement that a "return to work" medical certification be provided for employees returning from job-protected leave. If the employer has properly advised employees in advance of the requirement to submit such a "fitness for duty" report, and the employee seeks restoration before providing that documentation, the employer may delay restoration until the requested report is furnished. When an employee furnishes that certification, the employer is required to restore the employee to the job immediately.

		In verifying requests for medical leave, employers comply strictly with the provisions of both the FMLA and the Americans with Disabilities Act (ADA). Only information regarding the particular condition for which the employee is requesting leave – whether it be the employee’s own health condition or that of the employee’s spouse, child or parent – should be requested by the employer. In the final FMLA regulations, the Department of Labor revised Form WH-380 and the regulatory provision dealing with information required in medical certifications to ensure that required information relates only to the condition for which the employee is taking FMLA leave.

	F.	Determining the "12-Month Period" in Which Leave May Be Taken

		Employers are required to choose a method for determining the "twelve (12) month period" during which an employee may take his/her twelve (12) weeks of family and medical leave. The School Board of Brevard County has chosen the "rolling" twelve (12) month period which is measured backward from the date an employee uses any FMLA leave.

		The employee must have worked 1,250 hours during the preceding fifty-two (52) weeks prior to a Family and Medical leave. Paid sick, personal charged to sick, paid holidays and vacation hours are not counted hours worked. If an employee has been on a paid or unpaid leave during the fifty-two (52) weeks prior to a request for a FMLA leave, the hours worked listed must be reduced by the corresponding paid/unpaid leave hours. Some positions may be disqualified from taking FMLA because a paid/unpaid leave reduces their hours worked during the previous fifty-two (52) weeks to less than 1,250.

		The following schedule of hours is based on the normal days of service during the school year. An employee who works summer school accumulates additional work hours that are not reflected on this sheet. If an employee is disqualified from a FMLA leave because of the use of a paid or unpaid leave, summer school work hours worked within this fiscal year may be added to see if the 1,250 hours requirement can be met.

		Type D, C, and L are administrative, professional and technical and bargaining or non-bargaining - twelve (12) month employees.

Type C, L are professional and technical, media assistants, school office clerks, child care coordinators, assistant child care coordinators, bargaining or non-bargaining - depending on position, ten (10) month, eleven (11) month, or twelve (12) month employees.

Type O are cafeteria managers - ten (10) month employees and food service workers - nine (9) month employees.

Type N are instructional assistants, group leaders, vision screening specialist, auditory screening assistant - nine (9) month employees.

Type R are bus drivers - nine (9) month employees.

TYPE	MONTHS	# WORK DAY	HOURS/DAY	HOURS

D, C, L	12	250	8.0	2000
	12	250	7.5	1875
	12	250	7.0	1750
	12	250	6.5	1625
	12	250	6.0	1500
	12	250	5.5	1375
	12	250	5.0	1250

L	11	228	8.0	1824
	11	228	7.5	1710
	11	228	7.0	1596
	11	228	6.5	1482
	11	228	6.0	1368
	11	228	5.5	1254

C, L	10	206	8.0	1648
	10	206	7.5	1545
	10	206	7.0	1442
	10	206	6.5	1339
	10	206	6.1	1256

O	10	206	8.0	1648

C, N	9	183	8.0	1464
	9	183	7.5	1372
	9	183	7.0	1281
	9	183	6.9	1262

TYPE	MONTHS	# WORK DAY	HOURS/DAY	HOURS

N	9	190	8.0	1520
	9	190	7.5	1425
	9	190	7.0	1330
	9	190	6.7	1273

O	9	184	8.0	1472
	9	184	7.5	1380
	9	184	7.0	1288
	9	184	6.8	1251

R	9	182	8.0	1456
	9	182	7.5	1365
	9	182	7.0	1274
	9	182	6.9	1255

Under a rolling method, each time an employee takes family or medical leave, the remaining leave entitlement will consist of any balance of the twelve (12) weeks which has not been used during the immediately preceding twelve (12) months.

Reinstatement of Employees on Leave

One of the central provisions of the Family and Medical Leave Act of 1993 (FMLA) is the requirement that an employee taking leave under the law is entitled, upon return to work, to be restored to his or her original position or to "an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment". The restoration provisions of the FMLA raise certain questions that the FMLA and its implementing regulations do not always address adequately.

A.	Restoration of Equivalent Employment

	The regulations specify a number of other situations where an employer would not be obligated to reinstate an employee. The employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.

	1.	If a shift has been eliminated, or overtime has been decreased, an employee would not be entitled to return to work on that shift or to the original overtime hours upon reinstatement. However, if a position on a night shift, for example, has been filled by another employee, the employee is entitled to return to the same shift on which she or he was employed before taking FMLA leave.

	2.	If an employee was hired for a specific term or only to perform work on a discrete project, the employer is not required to restore the employee if the employment term or project is over and the employer would not otherwise have continued to employ the employee.

		Examples:

		In Maxwell v Red Cross Blood Services, the employer did not violate the FMLA when it eliminated the plaintiff’s computer operations position after he returned from leave, where that action occurred as part of a national reduction in force for the organization.

		An employee using FMLA leave to care for his/her terminally ill father lost his/her right to reinstatement after s/he failed to return to work for a period of nearly one (1) month after his/her father’s death. In Brown v J.C. Penny Corp., the court rejected the employee’s claim that his/her work on his/her father’s estate following the death constituted "caring for" his/her father, and his/her allegation that in this manner, the "serious health condition" continued after his/her father’s death.

B.	Equivalent Position

	An employee returning from family and medical leave must be restored to his/her previous position, or to an "equivalent position". This provision ensures that employees will not be deterred from taking leave for fear that they will have to take a substantially different job upon return.

	Because it will not always be possible for an employer to restore an employee to the exact position the employee held before taking leave, the definition of "equivalent position" becomes very important. The FMLA provides that the equivalent position must have equivalent benefits, pay and other terms and conditions of employment.

	For a job to be equivalent, it must involve "the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority". Thus, an employee must be restored to a position where s/he performs essentially the same duties, and receives the same employment benefits, salary or wages, hours, and other terms and conditions of employment. A position that is merely "comparable" or "similar" is not enough.

		If the employee is unable to perform an essential function of the position because of a physical or mental condition (including the continuation of a serious health condition), the employee has no right to be restored to another position under the FMLA. In many circumstances, however, the Americans with Disabilities Act may dictate further employer obligations.

		The regulations provide that is an employee is no longer qualified for his/her position because of the employee’s inability to attend a necessary course, renew a license, etc., as a result of the leave, the employee must be given a "reasonable opportunity to fulfill those conditions upon return to work".

		The regulations also address what is considered equivalent pay, equivalent benefits, and equivalent terms and conditions of employment. Equivalent pay includes any unconditional pay increases which may have occurred during the FMLA leave period, such as cost-of-living increases. An employee also is entitled to be restored to a position with the same or equivalent pay premiums, such as shift differential. For example, if an employee left a position averaging ten (10) hours of overtime each week, an employee is ordinarily entitled to such a position on return from leave. A returning employee does not have to be granted a pay increase that is conditioned upon seniority, length of service or work performed unless it is the employer’s policy or practice to provide these increases to other employees on "leave without pay".

		Equivalent benefits include group life insurance, health insurance, sick leave, annual leave, educational benefits and pensions. When an employee returns from FMLA leave, his/her benefits must be resumed in the same manner and at the same levels as provide when the leave began, subject to any changes in benefit levels that may have occurred during the FMLA leave period. An employee cannot be required to requalify for any benefits that s/he enjoyed before FMLA leave began. Thus, if an employee cannot be required to meet any qualifications, such as taking a physical exam, in order to requalify for life insurance upon return from leave. With respect to pension and other retirement plans, an employer must treat a period of FMLA leave as continued service for purposes of vesting and eligibility to participate. For other purposes, however, unpaid leave does not constitute "service credit", although paid leave is counted as service credit. If the plan requires an employee to be employed on a specific date to be credited with a year of service, vesting, contribution or participation purposes, an employee on unpaid FMLA leave on that date shall be deemed to have been employed on that date. However, FMLA does not constitute a paid status.

		The requirement that an equivalent position must have "equivalent terms and conditions of employment" includes the following:

		1.	the employee must be reinstated to the same or a geographically approximate worksite where the employee had previously been employed;

		2.	the employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule;

		3.	the employee must have the same or an equivalent opportunity for bonuses, profit-sharing, and other similar discretionary and non-discretionary payments; and

		4.	an employer may accommodate an employee’s request to be restored to a different shift, schedule or position that betters suits the employee’s personal needs on return from leave, or to offer a promotion to a better position.

		In determining the meaning of "equivalent position", there are four elements that courts look at to determine "equality" when analyzing different jobs. The first element is skill, which refers to the objective level of ability or dexterity required to perform job tasks. Skill is examined in terms of whether the duties of the two job require different levels of education, experience, training or natural ability to perform. For example, teachers in different disciplines do not have skills that are "equal".

		The second element of job "equality" is whether the two apparently equivalent positions require substantially equal effort. "Effort" is determined in terms of the physical or mental exertion necessary to perform the two jobs. Job effort is related to a particular job’s requirements and not to how hard an individual employee works at the job.

		The third element is responsibility. "Responsibility" includes such things as supervision of other and decision-making authority. If an employee regularly supervised twenty (20) employees before taking leave and only supervised ten (10) employees after returning from leave, the two (2) positions would likely not be considered "equivalent". In addition, a person who had ultimate responsibility for hiring new employees before taking leave would not be in an "equivalent" position after the leave ended if s/he did not retain final decision-making authority over new hires.

		The final element of "equality" under the Equal Pay Act is the "working conditions" of the two positions. "Working conditions" have been defined in terms of two (2) factors – surroundings and hazards. "Surroundings" include toxic chemicals or fumes regularly encountered by workers, their intensity and their frequency. "Hazards" are the physical hazards regularly encountered, their frequency and the severity of injury they can cause. Under the Equal Pay act, the term "working conditions" has not been held to include the time of day during which work is performed (e.g., day shift versus night shift). However, the place of performance is important. A job is not equivalent if it must be performed within a different establishment.

		The Department of Labor states that an employer has an obligation to place an employee in the same or an equivalent position even where no vacancy exists. In the discussion in the final regulations, DOL stated "the statute does not permit an employer to replace an employee who takes FMLA leave or restructure a position and then refuse to reinstate the returning employee on the ground that no position exists.

	C.	Accrual of Benefits and Other Job Rights

		Under the FMLA, the employee who is restored to his/her original position is not entitled to the accrual of any seniority or employment benefits during the period of leave. Any benefits that accrued before the date on which the leave began are unaffected by an employee’s taking family or medical leave. If an employee has fifteen (15) years and two (2) months of seniority before taking leave, the employee will have fifteen (15) years and two (2) months seniority when s/he returns.

		Under the FMLA rules, a restored employee also has no greater entitlement to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the leave period. This provision is intended to address the situation where an employer experiences a layoff while the employee is on leave. If an employee would have been laid off if s/he had not been on leave, the employee has no more entitlement to restoration than if s/he had been working at the time of the layoff. However, if an employer decides to eliminate an employee’s position while the employee is on leave, the employer must be able to prove that the decision was not retaliatory in nature.

		Examples of evidence that may aid an employer in proving that a decision to eliminate an employee'’ position was not in retaliation for his/her taking family or medical leave may include: examples of other employees in similar employment positions who were also laid off; documents prepared prior to an employee'’ giving notice of his/her intention to take leave, that clearly indicate the company’s plan to eliminate the employee’s position; and financial statements and other documents that illustrate the necessity in eliminating the particular employee’s position.

	D.	Certification for Return to Work

		The FMLA permits an employer to require an employee who took leave for his/her own serious health condition to obtain a medical certification that the employee is able to resume work.

		The certification must come from the employee’s health care provider and must state that the employee is able to return to work. The certification should include a statement describing the employee’s condition, the treatment provided and the current status of the condition.

		The District requires this type of certification in a uniformly-applied policy or practice requiring all employees in similar circumstances who take leave for such health conditions to obtain and present certification that the employee is, in fact, able to resume work. Our policy is uniformly applied to employees in similar circumstances based on, for example, the nature of the illness or the duration of the absence. Any fitness-for-duty certification required relates to the particular health condition that caused the employee’s need for FMLA leave. Separate requirements under the Americans with Disabilities Act that any return-to-work physical be job-related also must be complied with.

		The District has provided notice to its employees that it will require a fitness-for-duty certification to return to work. The employer may deny restoration to an employee until the employee submits the required fitness-for-duty certification unless the employer has failed to provide the employee with the required notice.

E.	Failure to Return From Leave

	1.	Impact on Health Insurance Premiums

		If an employee on FMLA leave fails to make a health insurance premium payment, and the employer advances the employee’s share of that premium to maintain coverage throughout the leave period, the employer is entitled to recover the portion of those premium costs "missed" by the employee. Moreover, if an employee fails to return to work after the period of family or medical leave has ended, his/her employer is entitled to recover any additional sums such as: the employer’s share of health insurance premiums for the period of FMLA leave during which the employer paid premiums to maintain the employee’s coverage under a group health plan. For these purposes, an employee is considered to have "returned" to work if s/he returns for a period of at least thirty (30) days following the conclusion of FMLA leave.

	2.	Unexpected Changes during the Leave Period

		An employer cannot recover health insurance premiums paid to maintain coverage for an employee on leave if the employee cannot return to work at the end of the leave period for one (1) of the following reasons:

		a.	the employee cannot perform the functions of the job as a result of his/her own serious health condition;

		b.	the employee is needed to care for the serious health condition of a spouse, child or parent; or

		c.	because of "other circumstances beyond the control of the employee (e.g., spouse is unexpectedly transferred more than seventy-five (75) miles from employee’s worksite, employee is laid off while on leave)."

		This exception is meant to cover the situation where an employee’s circumstances unexpectedly change during the leave period and s/he cannot return to work at the end of the twelve (12) weeks.

Special Concerns in an Organized Workplace

The FMLA does not affect the terms of existing collective bargaining agreements that provide employees with more generous family and medical leave benefits. The FMLA provides a floor of family and medical leave protection - employers are free, and even encouraged, to provide employees with greater protection. The enactment of a Federal minimum labor standard for family and medical leave should have a negative impact on the collective bargaining process for employers by taking away family and medical leave as a negotiating point with its employees.

If an employer has a collective bargaining agreement in effect on August 5, 1993 - the effective date of the FMLA - Title I of the law will not take effect for that employer until the termination of the agreement or twelve (12) months after the date of enactment of the FMLA (February 5, 1994), whichever is earlier.

	A.	Collective Bargaining Agreements

		Despite the enactment of the FMLA, employers are still obligated to comply with the provisions of any existing collective bargaining agreements that provide more generous family or medical leave rights to employees. This is consistent with the FMLA's intention to ensure that employees receive the greatest family or medical leave protection possible. A collective bargaining agreement continues in effect even if it contains family or medical leave benefits that are less than those provided under the FMLA, or even if it contains no family or medical leave rights at all. The FMLA simply provides a floor of protection upon which employers, as well as states, are free to build.

	B.	Seniority under Collective Bargaining Agreements

		An employee on leave under the Family and Medical Leave Act of 1993 (FMLA) is not entitled to the accrual of any seniority benefits that would have accrued had he or she not taken leave. Thus, an employee who has eighteen (18) years of seniority before taking family or medical leave will have eighteen (18) years of seniority during leave, s/he cannot be deprived of any seniority that accrued before the date the leave began.

		A collective bargaining agreement may change the general rule regarding accrual of seniority during family and medical leave. The FMLA states that nothing in the law "shall be construed to entitle any restored employee" to the accrual of any seniority benefits. However, an employer is free to allow its employees to accrue seniority during a period of leave.

FMLA COMPLIANCE PROCEDURE

A.	What do I do if an employee requests a Family and Medical Leave?

	1.	You must count the number of hours the employee has worked in the previous twelve (12) months and provide a copy of this count.

		For example, if the employee works eight (8) hours per day, twelve (12) months per year (261 days) this equals 2,088 hours per year. You must deduct any paid or unpaid sick leave, personal leave, annual leave and holiday pay from the 2,088 hours. Your total must be no less than 1,250 hours for the employee to be eligible for Family and Medical Leave. See page 57 - 59 of this manual for employee type and number of hours worked.

	2.	Prepare the appropriate leave paper, marking "LEAVE NOT PAID" "Family and Medical 6Gx5-7.11(5) and attach a doctor’s note with a complete explanation of the nature of the illness and the duration of the leave (from date and to date).

	3.	Discuss the employee’s insurance coverage. The District will continue to pay for the employee’s insurance while they are on FMLA leave. The employee must make arrangements for payment of their dependent coverage, life insurance, dental, vision, portable life insurance and disability, if any.

B.	How do I get help?

	You may call Compensation and Benefits at 633-1000, extension 216 for assistance with the regulations and processing of the paperwork.

F.S. 110.221, 1012.61
29 U.S.C. 2601 et seq.
29 C.F.R. Part 825

Approved 4/28/09