Silverman Bernheim & Vogel

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Philadelphia, PA 19102
215.569.0000
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Family and Medical Leave Act
Silverman Bernheim & Vogel

DEFINITIONS
The Family and Medical Leave Act ("FMLA") became effective on April 5, 1993). The FMLA applies to employers with fifty (50) or more employees having 20 or more calendar weeks in either the current or the preceding year. The FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave every 12 months for: (1) a birth, adoption or foster care placement of a child; (2) the care of a spouse, child or parent with a "serious health condition;" or (3) a "serious heahh condition" that makes the employee unable to perform the functions of the job. The FMLA permits an employee to take the full 12 weeks at one time or intermittently. Leave may also be taken on a reduced work schedule.

The current Department of Labor definition of a "serious health condition" includes "an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility,. ..or any subsequent treatment in connection with such inpatient care; or continuing treatment by a health care provider." A serious health condition involving continuing treatment by a health care provider includes a period of *incapacity of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition; 'any period of incapacity due to pregnancy or for prenatal care; any period of incapacity or treatment for such incapacity due to a chronic serious health condition; a period of incapacity which is permanent or long term due to a condition for which treatment may not be effective; or any period of absence to receive multiple treatments by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider.

The determination of whether an illness is a serious health condition under the FMLA is determined on a case-by-case basis. Examples, of illnesses that have been found to constitute serious health conditions pursuant to. the regulations are chicken pox, peptic ulcers, migraine headaches and degenerative back conditions. Illnesses that have not met the regulatory criteria are respiratory tract infections, food poisoning, bronchitis, carpal tunnel syndrome and hypertension. Of course, each of these findings were based on the particular facts present 'in each case. The regulations may contemplate that a particular illness, such as asthma, is a serious health condition, but in certain cases, the condition may not result in any period of incapacity or require continuing treatment by a health care provider and thus not fall under the regulatory definition.

Under the FMLA, an employee is entitled to leave for a serious health condition only if: (I) the leave is "medically necessary;" (2) the employee made reasonable attempts to schedule treatment so as not to unduly disrupt the orderly operations of the employer; and (3) the employee gave at least 30 days notice to the employer or notice as soon as practicable.

1. Calculating The "12-Month Period"
It is imperative for employers to adopt a method for calculating the "1 2-month period" and include this method in their handbook or policy statement. If the method is not chosen by the employer, the employee can use whichever method he or she chooses (and follow that method for 60 days thereafter -- if the employer wishes to change the method, it must provide 60 days notice). The employer's choice must be applied uniformly to all employees.

The four alternative methods are: (1) the calendar year; (2) any fixed twelve month period (for example a fiscal year or employee's anniversary day); (3) a 12-month period "measured forward" from date first FMLA leave begins; and (4) a "rolling" 12-month period measured backward from the date the employee uses any FMLA leave.

2. Designating Type of Leave
It is the employer's responsibility -- solely on the basis of information provided by the employee -- to designate all leave (whether paid or unpaid) as FMLA leave (or not) and to notify the employee of the designation.

If the employer lacks sufficient information regarding the employee's reason for taking leave, the employer must inquire of the employee (or his or her spokesperson) to ascertain whether the requested leave is FMLA - qualified

The final rules require that an employer:

(1) notify the employee, within two (2) business days (absent extenuating circumstances) after ascertaining that the employee is taking FMLA leave, whether the requested leave will be counted as FMLA and whether paid leave will be substituted.

(2) provide the employee with a written designation no later than the following pay day (unless the pay day is within the same week). The written notice may be in any form, including a notation on a pay stub.

(3) document all discussions (including the initial transfer request for leave) and decisions concerning disputes as to whether paid leave qualifies as FMLA leave

The employer is prohibited from designating leave as FMLA leave after an employee returns to work with two exceptions: (a) the employer does not learn of the reason for the absence until the employee's return; and (b) the employer made a preliminary designation (and notified the employee) pending receipt of medical certification or requested information.

Following are consequences of an employer's failure to timely designate, in writing, an absence as FMLA qualified:

(1) the absence cannot be used as the basis for any adverse employment action.

(2) the absence does not reduce the employee's total FMLA leave entitlement.
[In effect, the employee is entitled to unlimited leave until the employer properly designates the leave].

(3) employers who fail to comply will lose their right to substitute paid leave retroactively.

3. Other General Notice Requirements
In addition to providing notice, in writing that the leave will count as FMLA leave, employers must advise their employees of their rights and obligations under the FMLA, including notice that:

(1) the employee must provide medical certification of a serious health condition and the consequences of failing to provide it;

(2) the employee must provide 30 days notice for foreseeable leaves, such as child birth, adoption or planned medical treatment;

(3) the employee may be required to use (and may elect to use) vacation or other accrued paid leave in connection with the FMLA leave;

(4) any requirement for the employee to make premium payments to maintain health benefits, the arrangements for making such payments and the consequences of failing to make timely payments;

(5) any requirement for the employee to present a fitness-for-duty certificate to be restored to employment;

(6) the employee's status as a "key employee" (highest paid 10%) and the potential consequences that restoration may be denied following leave;

(7) employee's right to restoration to the same or an equivalent job

(8) the employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after the leave.

4. Restoring Employee to Same or Equivalent Position
An employee who has taken FMLA leave is entitled to return to his or her same or equivalent position when the leave expires. However, courts have held that an employee who is unable or unwilling to return to the his or her job at the end of the 12-week leave period loses his or her right to reinstatement. In addition, the employee's right to restoration is limited to a position to which he or she would have been entitled had the employee not taken leave. Case law and the regulatory definition are consistent in that they define "equivalent" as "virtually identical."

5. Posting Requirements
The final rules require every employer covered by FMLA to post a notice explaining the FMLA, regardless of whether it has any employees eligible for FMLA leave.

1. The notice must be conspicuous and large enough to be easily read. (8% x 11" paper sufficient).

2. If the employer fails to post the required notice, he cannot delay or deny the FMLA leave of an employee who failed to provide the required advance notice of FMLA leave.