The HR Summer School Back-to-Back Series continues today with the first of two parts of ADA 103. Reasonable accommodations under the Americans With Disabilities Act (ADA), are not easy to manage. To make sure this difficult topic gets adequate coverage, we’re splitting this class into two parts. The outline includes both parts and is provided for your later reference. Continue reading
FMLA 102, part of the HR Summer School, Back-to-Basics Program, reviews the conditions that entitle an employee to take FMLA-qualified leave. The Course Materials are attached for your reference.
The Family and Medical Leave Act of 1993 (“FMLA”) was enacted primarily to balance the demands of the workplace with the needs of families. It entitles eligible employees of covered employers to take up to 12 weeks of unpaid leave per 12-month period for:
ª the birth, adoption, or assumption of foster care of a child;
ª caring for an eligible family member with a serious medical condition;
ª caring for their own serious medical condition.
In its simplest form, the FMLA requires covered employers to give leave to covered employees for up to 12-weeks per year under any of the above three conditions. Employers must not only permit the employee to take leave, but also cannot take any retaliatory action as a result of the leave or request for leave.
II. Childbirth, Adoption, and Foster Children
Both fathers and mothers of newborns are entitled to take FMLA leave for the birth of a child.
The mother may take leave for childbirth, prenatal care, and to care for the newborn. She also may take FMLA leave for morning sickness and other pregnancy-related conditions that amount to serious health conditions.
The father may take leave for his wife’s serious, pregnancy-related health condition and to care for his newborn child.
If both spouses work for the same employer, the 12-week maximum is calculated in the aggregate. They can split up the leave as they want , and it can overlap, but the total combined leave cannot exceed 12 weeks.
Pregnancy itself is not a serious health condition. But conditions related to pregnancy are automatically serious health conditions under the FMLA if they prevent an employee from doing her job.
The FMLA protects intermittent and long-term leave for:
ª prenatal care and doctor visits;
ª bed rest on a doctor’s or midwife’s orders;
ª morning sickness; and
ª the birth of the child.
If an employee experiences complications from her pregnancy that incapacitate her and amount to a serious health condition, she is eligible for FMLA leave on that basis.
C. Adoption and Foster Care
Employees may use FMLA leave before actually getting the child if they must miss work to attend appointments, such as attorney meetings and court appearances that are required for the placement. Leave may also be taken to pick up the child. Employees do not have to wait for the adoption to become final before taking leave—they are eligible when they first begin caring for the child.
III. Medically Related FMLA Leave
The FMLA allows an employee to take protected leave to care for his or her own serious health condition. it also allows provides for leave to care for certain family members who suffered from a serious health condition.
A. Covered Family Members
Not all “family members” are included for the purposes of the FMLA. Only a spouse, son or daughter, or parent are considered to fall within this definition. A son or daughter can include a biological, adopted, foster, or stepchild, legal ward, or child for whom the employee stands in placer of a apparent. Parents do not include parent-in-laws.
B. Serious Health Condition
One of the biggest, yet unanswered questions with respect to the FMLA is what exactly is a “serious health condition.” Although there is no comprehensive definition that seems to apply in all situations, it is best to think of whether the condition has a serious effect on the individual employee. There are five categories of illnesses, injuries, impairments, and conditions. If the condition fits into one of the five categories, then it is covered by the FMLA.
Inpatient Care: Conditions requiring an overnight stay in a health-care facility (such as a hospital or hospice), automatically qualify as serious medical conditions. FMLA covers the time in the facility and any subsequent period of incapacity or follow-up treatment in connection with the same condition.
Incapacitation for More than Three Days: Conditions that incapacitate the employee for more than three consecutive calendar days are considered serious provided that he or she is under the “continuous treatment” of a health-care provider. “Continuous treatment” can mean
ª Two or more treatments by a health-care provider within the period of incapacitation; or
ª One treatment by a health-care provider that results in a regiment of continuing treatment under the provider’s supervision.
Chronic Serious Health Conditions: These conditions incapacitate a person but don’t last more than three straight days. It requires periodic visits for treatment by a health-care provider and continues over an extended period of time. The employee need not visit a health-care provider for each absence. Examples of chronic conditions could include diabetes, asthma, and epilepsy. Treatment may include prescription medications. Treatment does not include actions that the employee can do without a visit to a health-care provider, such as taking over-the-counter medications, or bed rest.
Long-Term Incapacity: A period of incapacity that is permanent or long-term because of a condition for which treatment may not be effective. For example, Alzheimer’s, stroke, or terminal disease.
Treatment to Prevent Incapacitation or for Restorative Surgery: This category includes absences that are taken to receive multiple treatments by health-care providers for reconstructive surgery after an accident or injury or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days if left untreated. Chemotherapy and radiation treatments are examples.
HR Summer School is back again. We’ve finished two ADA courses, so it’s time for the FMLA. This is the first of five FMLA “courses” in the HR Summer School series. The course outline is attached for your reference.
I. Covered Employers
The easy answer is that private employers with 50 or more employees are covered by the FMLA. Of course, there’s nothing easy about the FMLA, which is why there is a much more detailed explanation of this seemingly simple statement.
The FMLA covers private employers that have:
- at least 50 employees;
- for at least 20 weeks;
- in the current or preceding calendar year.
So who actually counts as an “employee” for purposes of determining whether a business is covered by the FMLA?
- Full- and part-time employees
- Temporary employees, even if you don’t pay them.
- Employee’s located at all work sites within 75 miles.
- Employees with no regular office are assigned to the office to which they ordinarily report.
- Employees “acquired” as part of the sale of a business.
The last type of employee applies only to “successor employers.” If you’ve acquired or taken over all or part of a business that was covered by the FMLA, you are considered a successor employer and may have to grant FMLA leave to certain employees even if the part of the business you’re operating has fewer than 50 workers. You must honor the leave request of any employee who had provided notice to the previous employers and you must follow the FMLA’s rules on maintaining benefits and reinstating employees who were on leave when you acquired the business.
B. Relevant Time Period
The FMLA covers only employers with 50 or more employees (as defined above). But what about employers who fluctuate just around 50 employees, or who had 50 employees but recently reduced staff? To determine the number of employees for FMLA purposes, employers can’t simply look to one specific date on the calendar, such as the first or last day of the year. A more complicated evaluation is required.
The FMLA applies, even if the employer does not currently have 50 employees, where the employer had 50 or more employees for at least 20 weeks in the current or preceding calendar year. This requires the employer to look at both years, week by week. Any week in which there were 50 or more employees on each working day (usually Monday through Friday), will count towards the 20-week minimum.
II. Covered Employees
Once an organization determines that it is covered by the FMLA and bound by its provisions, it will next need to determine whether the specific individual requesting leave is a covered employee.
To be eligible for FMLA leave, an employee must:
- be employed by the employer for at least 12 months; and
- work at least 1,250 hours in the 12 months before the leave would start.
The 12 months of employment do not have to be consecutive. And the 1,250 hour requirement must be satisfied by the time the employee would take the leave—not at the time the employee requests the leave.