Magazine article Risk Management

Family and Medical Leave Act Raises Questions

Magazine article Risk Management

Family and Medical Leave Act Raises Questions

Article excerpt

The federal government's Family and Medical Leave Act (FMLA) went into effect for most eligible employees in August 1993. Yet, the language of the act and its various unofficial interpretations has left many risk and employee benefits managers in a state of confusion over proper FMLA compliance. Self-admittedly, the speakers at the 32nd Annual RIMS Conference in New Orleans left their audience pondering even more questions. "There are no definitive answers. Until all of this goes through the courts, none of this will be resolved," stated Margy McKenna, director of risk and benefits for Jones Intercable Inc. in Englewood, Colorado.

The FMLA applies to employers with 50 or more employees in a work site (within a 75-mile radius). Access to family and medical leave can be denied to employees who worked less than 1,250 hours in the preceding 12-month period. "However, you still must count these employees toward the 50-employee threshold mandated by the Act," cautioned Marty Hurd, a consultant with Towers Perrin in Denver.

Eligible employees may take "up to 12 weeks unpaid leave per 12-month period: to care for a newborn, newly adopted or foster child; to care for an immediate family member with a serious health condition; or when a serious health condition makes the employee unable to perform essential job functions," Ms. Hurd noted. But exactly what kind of condition is considered "serious" is one of those unresolved issues that has yet to be defined by the courts. And furthermore, what is the definition of a "year"? According to Ms. McKenna, employers must select and consistently apply uniformly to all employees one of the following definitions: a calendar year; any fixed 12-month month "leave year"; a 12-month period measured forward from the date any employee's FMLA leave begins; or a "rolling" 12-month period.

An employer can require the employee to substitute paid leave for FMLA leave, according to Ms. Hurd. "But you must be sure that if you require this, that all policies are consistent regarding the application of paid leave," she added. Also, "employers must continue all health care benefits while the employee is out on leave, and contributions must be kept the same."

A major provision of the FMLA is that employees must be reinstated to former or equivalent positions with no loss of pay, seniority, accrued benefits, etc. …

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