When President Clinton signed into law the Family and Medical Leave Act in February, he instituted one of the most comprehensive employment laws since the Americans with Disabilities Act. Its impact on an employer's operation will be dramatic, and the potential penalties and damages for those companies that fail short of its mandate will be significant.
The Act provides employees with temporary leave in the event of the birth or adoption of a child, the serious health condition of a family member, or their own serious health condition. In passing the Act, Congress specifically has recognized the dramatic increase in the number of families in which both parents or single parents are working. Congress also has noted the lack of employment policies that reflect the "choice" working parents have to make between job security and parenting, providing care for ill family members, or taking care of their own serious health condition.
The provisions of the Act that cover private employers go into effect on August 5. However, for employees who were covered by a collective bargaining agreement on February 5, 1993, the Act's provisions become effective on the date of the agreement's termination or February 5, 1994, whichever is earlier.
Who is Covered?
The Act defines the term "employer" very broadly to encompass virtually every organization possible--"any person engaged in commerce or in any industry affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." The Act incorporates the definition of "person" from the Fair Labor Standards Act, which includes "an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons."
In order to be eligible for the protection of the Act, an employee must be at a place of employment for at least 12 months, or not less than 1,250 hours. Employees will not be eligible if they are employed at a worksite with less than 50 employees and the total number of employees within 75 miles of that worksite is less than 50.
Under the Act, employees are entitled to leave of 12 weeks in any 12-month period, providing that the employee gives his or her company advance notice and the employer does not deny the leave pursuant to one narrow exception, discussed below.
In the event that spouses are employed by the same employer, the aggregate number of workweeks of leave the employees are entitled to can be limited to 12 workweeks if the leave is due to the birth or adoption of a child or to care for a parent with a serious health condition (see box, page 47).
An employee who has had a child born or adopted can take leave under the Act at any time during the 12-month period after the date of the birth or placement for adoption. However, there may be pre-birth situations that might trigger leave entitlement depending on the health condition of the expectant mother.
The Act essentially only requires notice when the leave is "foreseeable" In the event of the birth or adoption of a child that is foreseeable, the employee must provide 30 days' notice before the leave is to begin. If such notice is not possible, however, the employee must provide "such notice as is practicable."
If the necessity for leave due to a serious health condition is "foreseeable based on planned medical treatment," the employee must make a reasonable effort to schedule this treatment "so as not to disrupt unduly the operations of the employer." However, this requirement is subject to the approval of the healthcare provider. The employee must provide 30 days' notice, or, if not possible, "such notice as is practicable."
Employers may require employees seeking leave to produce a certification by the healthcare provider where the leave is related to a serious health condition. In the case of a request for leave to care for a spouse, parent or child, the certification must contain the following:
* The date on which the condition began;
* The probable duration of the condition;
* The appropriate medical facts which the healthcare provider knows about the condition;
* A statement (where applicable) that the employee is needed to care for the spouse, parent, son or daughter, and an estimate of the time needed; and
* A statement (where applicable) that the employee is unable to perform the functions of the position.
In the event of a request for intermittent/reduced leave (discussed below), the certification must also contain the dates on which the treatment is expected to be given and the duration of such treatment. If the intermittent/reduced leave schedule option is requested in event of the serious health condition of the employee, there must be a statement of the medical necessity for this type of leave and its expected duration. If this type of leave is requested in connection with the serious health condition of a spouse, parent or child, there must be a statement that this type of leave is necessary for the care of the ill person or will assist in his or her recovery, as well as a schedule of the leave and its expected duration.
What if the employer doubts the validity of the certification that is presented? In this case, the employer has the option of requiring the employee to obtain a second certification regarding the serious health condition. This is done at the employer's expense, and must be done by a healthcare provider that is not regularly employed by the employer. Should the second certification
differ from the certification originally presented by the employee, the employer has the option of requiring a third certification, at the employer's expense. The third healthcare provider, however, must be approved by both the employer and the employee. The opinion of the third healthcare provider will be considered final and binding on both the employer and the employee.
Additionally, when an employee is currently exercising his or her right to leave under the Act, an employer may require periodic updates on the status of the leave and the employee's intention to return to work. As part of this continuing communication, an employer may further require an employee to obtain recertification of his or her eligibility for leave on a reasonable basis.
Employees have the option of taking the leave intermittently or on a "reduced leave schedule." This option essentially allows the employee to work shorter workweeks or shorter workdays for the employer. However, it does not reduce the total amount of leave (12 workweeks, or 60 days) to which the employee is entitled.
There are several restrictions on the intermittent/reduced leave schedule option. First, it must be "medically necessary." Second, the employee who has a newly born or adopted healthy child can take this option only if the employer agrees. Employer agreement is not necessary for a reduced leave schedule for a serious health condition of a family member. However, as mentioned above, a certification for intermittent or reduced leave must contain additional factual statements.
If the serious health condition of the eligible employee or family member that causes an employee to invoke the intermittent/reduced leaves schedule option is foreseeable (based on planned treatment), the employer has the option to transfer the employee--on a temporary basis--to an "available alternative position." In order for the employer to do this, however, the following requirements must be met: The employee must be qualified for the position; the position must provide equivalent pay and benefits; and the position must "better accommodate" the intermittent leaves rather than the employee's typical position.
While an employee is on leave, the employer is required to maintain the employee's normal health coverage. An employer is not required to pay for an employee's leave. If an employer provides paid family leave for less than 12 weeks, the balance of the 12 weeks required by the Act may be unpaid.
An employer can require an employee, or the employee may elect, to substitute accrued paid vacation leave, personal leave or family leave for any leave, other than leave for the employee's own illness. The same "option" for the employer and employee exists in the event of the employee's own serious health conditions, but the employer is not required to provide paid sick leave or paid medical leave where it normally would not be provided.
When an employee returns to work after a leave, he or she is entitled to be "restored" to the position held prior to the leave, or to "an equivalent position of like seniority, status, employment benefits, pay and other terms and conditions of employment."
The Act provides that the election of leave cannot result in the loss of any benefits that accrued prior to the leave. However, employees are not entitled to accrue seniority or benefits during the leave.
The employer can establish a policy or practice that requires, as a condition of restoration after a leave for the employee's own illness, that the employee obtain certification from the healthcare provider that the employee is able to resume work. However, this aspect of the Act is subject to any applicable state or local law, or collective bargaining agreement regarding the return to work.
The circumstances in which an employer may deny job restoration to an otherwise eligible employee are extremely limited:
* The employee must be salaried and among the top 10 percent of the employees (in terms of pay).
* The denial of leave must be necessary to prevent substantial and grievous economic injury to the employer.
* The employer must notify the employee of its intent to deny the leave once it determines that the denial is necessary. Once an employee already on leave receives such notification, he or she must return to work.
The Act specifically states that its provisions do not excuse noncompliance with an employee benefit plan or collective bargaining agreement that is in effect on the date the Act is enacted. In addition, an employer cannot justify the reduction of benefits provided by the employer or required by a collective bargaining agreement that exceed those benefits required by the Act.
Because of the dramatic impact the Act will have on an employer's operation, in terms of formulating policies to administer compliance with the Act, as well as the employer's "bottom line," in terms of financing benefit coverage for employees who are not working and, in fact, may have to be temporarily replaced at even further cost, employers should begin to prepare now.
FAMILY LEAVE LEXICON
FAMILY AND MEDICAL LEAVE:
Leave from employment for 12 weeks in any 12-month period to provide care that is necessary because of one of four events: the birth of an employee's child; the adoption of a child by an employee; the serious health condition of a spouse, son. daughter or parent of the employee; or the serious health condition of the employee.
EMPLOYER: Any person engaged in commerce or in any industry affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
EMPLOYEE: An employee must be employed by the company for at least 12 months, for not less than 1,250 hours. An employee will not be eligible if he or she is employed at a worksite where less than 50 employees are employed or where the total number of employees within 75 miles of that particular worksite is less than 50.
SERIOUS HEALTH CONDITION:
Any illness, injury, impairment, or physical or mental condition that requires in-patient care in a hospital, hospice, or residential medical care facility and/or continuing treatment by a healthcare provider.
The Family and Medical, Leave Act. makes it unlawful for an employer to interfere with, restrain or deny the exercise of the rights provided by the Act or to withhold benefits provided by the Act, In addition, it is unlawful for an employer to discharge or discriminate against an individual who has opposed a practice that is made unlawful by the Act
It is also unlawful for an employer to discharge or discriminate against an individual who has filed a charge or instituted or caused a proceeding under or related to the Act; provided information in connection with an inquiry or proceeding related to the rights provided under the Act; or testified or is about to testify in an inquiry or proceeding related to a right provided by the Act.
Individuals who feel their rights have been violated under the Act may file their own lawsuits against their employers for violations of the Act, seeking either lost wages, salary or other employment benefits, on where such wages or benefits have not been denied or lost by the employee or employer, any monetary losses that the employee has sustained as a result of the employer's violation (such as the cost of providing care), up to a sum equal to 12 weeks of wages or salary. An employee can also sue for reinstatement and promotion. Finally, an employee is entitled to receive his or her reasonable attorney's fees. reasonable expert witness fees, and any other costs incurred in prosecuting the litigation
The statute of limitations for such a lawsuit is two years. In the even of a willful violation of the Act, the statute of limitation is three years
Paul A. Tufano is a labor and employment law attorney with the Philadelphia-based firm Blank, Rome, Comisky & McCauley.…