The Family Medical Leave Act: Abridged.

Emma J. Darling, Senior Associate

An employee enters stage left into what appears to be the Human Resource’s office: obviously ill and in need of assistance. It’s important to know what is available to your employees under the Family Medical Leave Act (“FMLA”), how they must alert you to their usage of the Act, and where to find the important paperwork. Thus, our story begins:

Employee Eligibility

For starters, know if your employee is an eligible employee for FMLA purposes. To be eligible, an employee must have been employed for a total of 12 months of service; have worked 1250 hours in the immediately preceding 12 months; and must work at a site with 50 or more employees within 75 miles. The employee does not have to have worked for 12 months continuously, but any service that is more than seven years old will not be counted unless the break was for military service. The third qualifier could mean that the district employs more than 50 employees within a few district campuses, and as long as the campuses are within 75 miles then the employee has met that requirement.

Qualifying Reasons

There are specific reasons that qualify an employee for using FMLA leave. If you have questions whether fact-specific scenarios apply, contact your local counsel. These reasons include:

• For the birth of a child, and to care for the newborn child;

• For placement of a child with the employee for adoption or foster care;

• To care for the employee’s spouse, son or daughter, or parent with a serious health condition;

• Because of the employee’s serious health condition that makes him unable to perform the functions of the job;

• Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status; and

• To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember (referred to as military caregiver leave).

A serious health condition is one which involves inpatient care or continuing treatment by a health care provider, which could include: incapacity of more than three consecutive, full calendar days; pregnancy or prenatal care; chronic conditions; or permanent/ long-term conditions. Incapacity is better described as the inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

EMPLOYEE’S REQUIRED NOTICE - FORESEEABLE LEAVE

Employers may require that employees comply with usual and customary notice and procedural requirements for requesting leave in foreseeable leave situations, absent unusual circumstances. Requirements may include providing written notice or a requirement that employees contact a specific individual to request leave. The employee must explain sufficiently the reasons for leave so that the employer can determine whether the requested leave qualifies under the FMLA. The employer should ask the employee for any additional information, and the employee must respond to such requests or risk having leave denied. If an employee seeks leave due to an FMLA-qualifying reason for which the employer previously granted FMLA-protected leave, the employee must still specifically reference the qualifying reason for leave or the need for FMLA leave. If timely notice is not given, the period of delay counts as non-FMLA-protected absence, depending on the circumstances.

EMPLOYEE’S REQUIRED NOTICE –UNFORESEEABLE LEAVE

When leave is unforeseeable, it is still the employee’s burden to request leave. The employee should request leave as soon as practicable under the specific facts of their situation. The Department of Labor (DOL) says it generally should be practicable for an employee to comply with the employer’s usual and customary leave or absence notification policy. Employers cannot require that this notice be in writing, and the notice may be given by a spokesperson for the employee if the employee is unable to do so themselves. A simple example would be if the employee is in an accident and is unable to get to the phone, the employee’s spouse may call in to give notice.

The notification of the need for unforeseeable leave must provide sufficient information for the employer to reasonably determine whether FMLA may apply. No magic words are required, but calling in sick is not enough. The employer should ask the employee for any additional information and the employee must respond to such requests or risk having leave denied. If an employee seeks leave due to an FMLAqualifying reason for which the employer previously granted FMLA-protected leave, the employee must specifically reference the qualifying reason for leave or the need for FMLA leave. If timely notice is not given, the period of delay counts as non-FMLAprotected absence, depending on the circumstances.

Employer Notice Requirements - General Notice and Distribution.

There are four general notice requirements for employers: (1) the general notice of posting; (2) the general notice distribution requirements; (3) employee specific eligibility notices/”Rights and Responsibilities”; and (4) the designation notice. Employers must post a general notice posting with FMLA information by hard copy, electronically, or both in English and in any other language if the workforce has a significant portion of non-English speakers who speak the same language. The DOL has posters available in English and Spanish on its website. This must be posted in a conspicuous place so that employees and applicants have access. General notice about the FMLA and districtspecific policies must also be described in policies or handbooks and distributed to all employees. These may be hard copy, electronic, or both.

EMPLOYER NOTICE REQUIREMENTS – ELIGIBILITY

The eligibility notice may be either oral or in writing and must be provided within five business days of the initial request for leave or when the employer acquires knowledge that an employee leave may be for an FMLA-qualifying reason. This notice must inform the employee of their eligibility status, and if the employee is determined to be not eligible for FMLA leave, state at least one reason why. Within the same time frame, employers must provide the employee with a written Notice of Rights and Responsibilities. A combination Notice of Eligibility and Rights and Responsibilities can be found on the DOL’s website. This form, among other things, notifies the employee if the employer is requiring certification, such as a medical certification, of the need for leave.

EMPLOYER NOTICE – DESIGNATION NOTICE

The designation notice given by an employer to an employee must be provided in writing within five business days of having enough information to determine whether the leave is FMLA-qualifying, which usually occurs after certification is obtained. The notice must be provided for each FMLAqualifying reason per applicable 12-month period (additional notice is required for any changes in the designation information). This notice must include the employer’s designation determination, and any substitution of paid leave and/or fitness for duty requirements, and provide the amount of leave that is designated and counted against the employee’s FMLA entitlement, if known. If the amount of leave is not known at the time of the designation, the employer must provide this information to the employee upon request, but no more often than once in thirty-day period and only if leave was taken in that period. The DOL also has a prototype Designation Notice on its website.

Duration

An eligible employee with a qualifying reason is generally entitled to 12 workweeks of FMLA leave in a 12-month period, though employees taking military caregiver leave are entitled to up to 26 workweeks of leave. During this period, the employee’s health insurance must be maintained. FMLA leave can be taken either as one continuous block, in blocks of time, intermittently, or on a reduced leave schedule. There are limits on intermittent leave for instructional employees. On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave began, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. However, an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.

Calculation Of Leave

It is up to the employer to track the employee’s leave. Employers must track intermittent or reduced schedule leave in increments no greater than shortest period of time that you use to account for use of other forms of leave, provided it is not greater than one hour (not required to account for FMLA leave in increments of six minutes or even 15 minutes simply because payroll system can do so). Employers cannot charge for time spent working.

For example, an employer may use a one-hour increment rule. If they do, when an employee is fifteen minutes late for work, the employer can prohibit the employee from working for one hour. However, if the employee is permitted to work, then only fifteen minutes can be charged to their FMLA leave. If the employee becomes ill thirty minutes prior to the end of the shift and needs to leave, the employer can only charge thirty minutes as FMLA leave.

If it is physically impossible for the employee to access the worksite after start time, the entire period the employee is forced to be absent from the worksite is FMLA leave. Employees must be permitted to resume work when it’s physically possible for them to do so. For example, if a driver is not available to drive bus at start time due to an FMLA reason, he is considered on FMLA leave from start time until the bus returns and it is time for next run, even if he was able to work prior to the start of the next run.

Holidays

If an employee needs less than a full week of FMLA leave and a holiday falls within the partial week of leave, the hours that the employee doesn’t work on the holiday cannot be counted against the FMLA leave entitlement. However, if an employee needs a full week of leave in a week with a holiday, the hours the employee does not work on the holiday will count against the employee’s FMLA entitlement.

Bonuses and Awards. Employers can now disqualify employees from bonuses or other payments based on achievement of a specified job-related performance goal (such as attendance) where the employee has not met the goal due to FMLA leave; so long as it is done in a non-discriminatory manner.

If you have any questions regarding the FMLA, or a fact-specific scenario you’re encountering with one of your employees, contact your school attorney.