G. The Family and Medical Leave Act

The signing of the FMLA by President Clinton will impact millions of employees working for companies with 50 or more employees who desire job-protected leave. This section will analyze pertinent details of the legislation and offer strategies for companies to follow.

The act affects private and non-profit employers as well as federal, state and local government employees. It applies to companies who employed 50 or more employees within a 75-mile radius for each working day for each of 20 or more calendar workweeks in the current or preceding calendar year (about half of the nation's workforce). Part-time employees and employees on leaves of absence are counted in this calculation provided they are on the employee's payroll for each day of the workweek. Conversely, employees who began employment after the beginning of a workweek, were terminated prior to the end of a workweek or who worked part-time on weekends, are not included in the equation.

TIP: Since companies with less than 50 employees are exempt, analyzing the number of employees who must be counted becomes an important consideration for organizations close to the "magic" 50 number. Some companies who employ approximately 50 workers might terminate a few one way or another to avoid the law's requirements and burdens.

Counsel Comment #112: It is possible to maintain a sufficient workforce and still be exempt from the law's impact by hiring temporary, contract employees or part-time workers who work 25 or fewer hours a week.

An eligible employee, defined as someone who has been employed for at least 12 months and worked for the employer at least 1,250 hours during the 12-month period immediately preceding the commencement of the leave, is allowed to take up to 12 weeks of unpaid leave in any 12-month period for:

• The birth of a child;
• The adoption of a child;
• To care for a child, dependent son or daughter over the age of 18, spouse or parent with a serious health condition; or
• To convalesce from a serious health condition that makes it impossible for him/her to work.

The 12 months of employment rule need not have been consecutive and the number of hours needed to satisfy the 1,250-hour requirement will be computed liberally according to guidelines promulgated under the Fair Labor Standards Act (FLSA). Addi- tionally, some employees who require continuing medical supervision (i.e., workers with early stage cancer or who had major heart surgery) who must undergo frequent medical examinations or treatment but are nonetheless capable of working part-time still fit into the category of suffering from a "serious health condition" and qualify for leave time. Those workers who qualify are required to give 30 days advance notice unless advance notice was not anticipated or not practical, such as in a premature birth or sudden, unexpected illness.

The law applies equally to both male and female employees. Thus a father, as well as a mother, can take family leave and at the same time or sequentially, depending upon the family's preferences and economic considerations. However, if both spouses are employed by the same company, the law limits the total amount of leave to 12 weeks for both in most situations.

For those workers claiming serious health situations, the law permits an employer to obtain medical opinions and certifications regarding the need for a leave. The certification must state the date on which the serious health condition began, its probable duration, the appropriate medical facts within the knowledge of the health care provider regarding the condition, and an estimate of the amount of time the employee needs to care for a family member or himself. If an employer has doubts about the certification, it may require a second opinion from a different health care provider chosen by the employer. If both opinions differ, a third opinion from a provider jointly designated or approved by the employer and employee will be final and binding.

A key element of the law allows a person taking leave to be restored to his or her position or to an equivalent position, with equivalent benefits, pay, and other terms and conditions of employment, upon returning from the leave. The burden is on the employer to give the worker back the same or equivalent job. This differs from a comparable or similar job wherever possible. Also, no employer may deprive an employee of benefits accrued before the date on which the leave commenced. On the other hand, if the employer was about to lay off the worker just before being notified of the leave, the employee's right of reinstatement is no greater than what it was when the layoff occurred.

During the time the worker is on leave, an employer is not required to pay the worker but is required to maintain health insurance benefits at the level and under the conditions coverage would have been if the employee had continued in employment.

TIP: Nothing requires an employer to provide health benefits if it does not do so at the time the employee commences leave. However, if the employer was considering establishing a health plan during the employee's leave, the worker on leave is entitled to receive the same benefits other workers still on-the-job receive. But, an employer has the authority to demand repayment for the group health-care premiums paid by the employer during the leave if the employee fails to return after the period of leave to which the employee is entitled has expired and the reason was not caused by a recurrence or onset of a serious health condition or other circumstances beyond the employee's control. Also, the law prohibits a worker on leave from collecting unemployment or other government compensation.

Important Exceptions. There are numerous exceptions employers should be aware of. First, an eligible employee may elect, or an employer is permitted, to substitute any accrued paid vacation leave, personal leave or family leave of the employee under pre-established policies in handbooks or employee manuals for any part of the 12-week period of family leave. As a result, many companies will not be seriously impacted by transferring existing personnel, hiring temporary workers and working out job-sharing arrangements to fill vacancies since they previously implemented effective leave policies and gave time off. Those companies need now only provide both paid and unpaid leave up to a total of 12 weeks. Also, the act gives employers the right to count time off against paid vacation days or other accrued personal leave.

The leave requested may not generally be intermittent or on a reduced schedule without the employer's permission or except when medically necessary; employers are permitted to require an employee taking intermittent leave as a result of planned medical treatments to prove the medical necessity for the leave and to transfer temporarily to an equivalent alternative position. This provision gives employers greater staffing flexibility by enabling them temporarily to transfer employees who need intermittent leave or leave on a reduced schedule to positions that are more suitable for recurring periods of leave.

Employers can exempt highly compensated employees in the highest paid 10 percent of the workforce (within 75 miles of the facility at which the employee works) provided granting the leave would cause substantial and grievous economic harm to the employer.

TIP: Note however that a key employee who takes leave is still eligible for continuation of health benefits, even if the employee has been notified that reinstatement will be denied. Under such circumstances, no recovery of premiums may be made by the employer if such employee has chosen to take or continue leave after receiving such notice.

Finally, an absence caused by substance abuse which is not being treated does not qualify for FMLA leave. Under both the FMLA and the ADA, employers may still terminate employees for current illegal drug use.

Enforcement Concerns. The Secretary of Labor has the authority to investigate alleged violations of the FMLA. This includes.findlaw requesting employers to submit their books and records for inspection. Violations are punishable by injunctive and monetary relief. For employers who violate the law, monetary damages include an amount equal to the wages, salary, employment benefits, or other compensation denied or lost to an employee. In cases where no compensation or wages is lost, the law imposes other forms of damages, such as the actual amount of out-of-pocket money incurred in paying someone else to provide care. Interest on any judgment is permitted. In the event a willful violation is proved, employers are liable for additional damages equal to the amount of the award.

Counsel Comment #113: A court has the discretion to award no liquidated damages when an employer proves any act or omission was made in good faith and the employer had reasonable grounds to believe it was not acting improperly. This might occur, for example, after receiving a lawyer's written opinion that the company was not violating the law after being notified by an employee that a violation was, in fact, being committed. Thus, it is important to request and save all favorable written opinions from counsel for this purpose.

The law also imposes reasonable attorney fees, expert witness fees and other costs and disbursements.

Proceed cautiously in this area and speak to legal counsel for pertinent information. Employers are forbidden from discriminating against workers who attempt to utilize the act or who protest alleged violations. Similarly, it is unlawful to retaliate against any worker by discharge or reduced benefits because an employee has filed a charge or instituted a pro- ceeding concerning the law or is about to give (or has given) testimony regarding the act.

TIP: In the event your state law is more comprehensive or offers greater benefits to workers than the federal law, the state law is not pre-empted by the federal legislation. Thus, for example, state or local laws that provide greater employee protection, longer leave periods, or paid leave will predomin- ate. And the FMLA cannot take away rights granted to employees in collective bargaining agreements, pension plans, ERISA rights, or rights granted as a result of the Americans With Disabilities Act and other discrimination laws.

Hazardous Jobs

Recently, the U.S. Supreme Court <$IHazardous jobs;sex discrimination>stated that employers cannot ban women from certain hazardous jobs, even if the motive is preventing birth defects in fetuses those female workers may be carrying. In the case in question the Supreme Court ruled that a manufacturer acted illegally by prohibiting women capable of bearing children from holding jobs involving exposure to lead during the manufacture of batteries. The court ruled that such a policy forces some women to choose between having a child and keeping a job, and thus violated federal laws against sex discrimination.

TIP: Despite the ruling of this case, women who insist on remaining in such jobs still have the right to sue their employers for damages on behalf of a child born with prenatal injuries caused by workplace conditions, even years after being exposed to such hazardous conditions.

Counsel Comment #114: To minimize liability, employers should educate workers about any dangers they may face on the job. Employees should be encouraged to ask for reassignment from hazardous jobs in the event they become pregnant. However, to meet Supreme Court guidelines, such reassignments must be voluntary, and there can be no reduction in a worker's compensation benefits or seniority rights. If no alternative position is available, consider offering the worker leave with full pay during the pregnancy to reduce potential problems.

Some companies require female workers to execute releases which state that the worker has been advised of the potential hazards to her and her fetus. When such releases are signed knowingly and voluntarily, a company's exposure may be reduced when it demonstrates the employee's awareness and consent to the risks.

Pregnancy And ADA

The ability of pregnant workers to succeed in demanding special accommodations has been strengthened by the passage of state and local laws. For example, a recent decision by New York City's Commission on Human Rights cited pregnancy as a "per se disability" requiring a company to make reasonable accommodation if asked to do so by an employee. Under many of these new laws the physical demands of pregnancy may require companies to allow pregnant workers to work at home or rearrange their work schedules. This means that when a woman seeks reasonable accommodation during pregnancy, an employer may now be required to be responsive to the particular physical limitation which the employee brings forward on a case-by-case basis. Employers unwilling to comply with such a request are required to justify their decisions by demonstrating that compliance would create an undue hardship.

Under the ADA, regulations published by the EEOC (which enforces the ADA) suggest that "temporary non-chronic impairments that do not last for a long time and that have little or no long-term impact usually are not disabilities" so pregnancy is probably not covered.

Maternity Leave

The following rules should govern your company's policies in this area:

• Employees who are on maternity leave are entitled to accrue seniority, automatic pay increases and vacation time on the same basis as other employees on medical leave.
• Employers may require a physical examination and doctor's certification of ability to return to work only if such is required of all temporarily disabled employees.
• After the birth, an employer cannot prohibit a woman from returning to work sooner than the company policy dictates.
• The law requires the granting of maternity leave of absence if leaves of absence are granted for other reasons.
• It is illegal to place a time restriction on the duration of maternity leaves unless the same restrictions are applied to leaves for other temporary disabilities.

Counsel Comment #115: Do not place time restrictions on the duration of maternity leaves unless the same restrictions are applied to leaves for other temporary disabilities. Post- disability care should be treated as personal leave and the rules governing this should be established in a company policy manual. For example, the manual can state that two weeks personal leave is given upon written request, and that this may be extended at the company's discretion in unusual circum- stances, but for no more than X weeks.

Require all pregnant women, like other disabled employees, to submit a doctor's certificate stating the length of time they will be unable to perform their duties due to pregnancy. Usually, such a certificate states disability for two weeks before and six weeks after the birth. If the employee requests addi- tional time for post-disability child care, you would then consider such a written request pursuant to company policy on unpaid personal leaves of absence, and federal and state law.

Counsel Comment #116: Even with the FMLA, your company can advise an employee that you cannot guarantee a return to her job after her maternity leave for postnatal care if it exceeds a certain number of weeks (e.g., 12), but be sure that your policy treats all other personal leaves in the same way.

When formulating policy on disability leaves, consider imposing a flat time limit on all such leaves (i.e., four months) which includes.findlaw pregnancy-related disability leave. Your other option is not to specify a time limit, relying instead upon the dura- tion of actual disability substantiated by required medical proof.

TIP: If an employee is out on leave for a pregnancy-related medical disability that actually continues (by complications substantiated by required medical proof) for more than three to four months, many state laws say that you must allow her to return to work when she is physically able to resume her duties.

Parental Leave

Parental leave is personal leave for child care without pay which occurs after the physical disability from pregnancy and/or birth has been removed.

Parental leaves for postnatal care differ from disability leaves in that they are typically given without pay and are considered personal leaves of absence for the purposes of company policy, as opposed to money given for an absence from work caused by a physical disability.

because laws are rapidly changing. In fact, all employers should conduct a periodic yearly review to keep current in this area.

More than 25 percent of all companies in the United States provide some form of parental or family leave for employees. In those states not requiring such policies, your company must now follow the federal FMLA law. Publish benefits in a company handbook or policy manual so that employees will have advance notification of what is available.

To avoid charges of discrimination, guidelines promulgated by the EEOC require that male and female employees receive the same benefits. If unpaid leaves of absence are provided by your company, fathers as well as mothers of newborn or adopted children must be given such personal leave. Also, if the company permits extended child-care leave to mothers, employee-fathers must receive the same benefits.

TIP: Never show favoritism to one sex over another. The following practices violate federal and state discrimination laws in the administration of fringe benefits and entitlement to continued pension, profit-sharing plans, bonuses and other financial benefits while on leaves, as well as vacations, holidays, and paid leaves:

Conditioning benefits available to employees and their spouses and families on a particular status such as "head of household" or "principal wage earner;"

Making certain benefits available to wives of male employees but denying them to husbands of female employees.