Eployment Law Indianapolis The DeBrota Law Firm LLC

Family Medical Leave Act Rights for Employees

The Family Medical Leave Act (“FMLA”), 29 U.S.C. §2601, et seq., and the U.S. Department of Labor’s Regulations, 29 C.F.R. §825, et seq. require covered private employers (50 or more employees within 75 miles of worksite) and governmental employers to provide eligible employees who have a serious health condition, or other qualifying reason for leave, with up to 12 weeks of unpaid family or medical leave in any 12 month period.

  • Eligibility:  To be eligible an employee must be employed for 12 months and have worked 1250 hours during the 12 month period immediately preceding leave. 29 U.S.C. §2611(2)(A).
  • Determining the 12 month period:  Employer must select one of four methods (calendar year, other fixed 12 month period, rolling 12 month period, or the 12 month period measured forward from beginning of employee’s first leave) and inform employees in advance and apply uniformly; otherwise, the employee is entitled to most beneficial 12 month period. 29 C.F.R. §825.200.
  • Reinstatement:  FMLA requires employer to restore employee to same or equivalent position upon his/her return from leave. 29 U.S.C. §2614(a)(1).
  • An employee is not entitled to “any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.” 29 U.S.C. §2614(a)(3)(B); 29 C.F.R. §825.216(a).

What constitutes a serious health condition?

  • “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves (a) inpatient care in a hospital, hospice or residential medical care facility; or (b) continuing treatment by a health care provider. 29 U.S.C. §2611(11).
  • Continuing treatment by a health care provider defined in 29 C.F.R. §825.114(2) and includes (a) a period of incapacity of more than three consecutive calendar days; (b) any period of incapacity due to pregnancy or parental care; and/or (c) any period of incapacity due to a chronic condition.

 In addition to leave for a block of time, intermittent leave is also allowed.

  • Defined as leave taken in separate blocks of time due to a single qualifying reason or on a reduced schedule. 29 C.F.R. §825.203(a).
  • Intended for employees who have a predictable, regularly recurring need for leave. 29 C.F.R. §825.117; 29 C.F.R. §825.203(c)(1).
  • Medical certification must establish that intermittent leave is “medically necessary.”29 U.S.C. §2612(b)(1); 29 C.F.R. §825.203.
  • No limit on length of leave increment, but employer may limit leave to smallest period of time used by payroll, provided it is 1 hour or less. 29 C.F.R. §825.203(d).
  • Employees are required to “make a reasonable effort to schedule the leave so as not to disrupt unduly the employer’s operations, subject to the approval of the health care provider.”29 C.F.R. §825.302(e).
  • The employer may require the employee to temporarily transfer to an available position for which employee is qualified that offers equivalent pay and benefits and better accommodates the employee’s leave schedule. 29 C.F.R. §825.204.
  • Intermittent leave or reduced schedules are not available to employee for birth of child or care of newborn or for the placement of child unless the employer agrees. 29 C.F.R. §825.203(b).
  • Intermittent leave may be required under ADA as a reasonable accommodation.

How much leave must be provided is determined by whether the frequency and/or duration of the leave poses a hardship to the employer. 29 C.F.R. §825.702(b).

  • Most courts have found that indefinite leave or unlimited sick days is not a reasonable accommodation. Myers v. Hose, 50 F.3d 278 (4th Cir. 1995); Hudson v. MCI, 87 F.3d 1167 (10th Cir. 1996); Byrne v. Avon Products, 328 F.3d 379 (7th Cir. 2003); Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996).

 The employee has notice obligations to the employer.

  • An employee must provide the employer with at least 30 days advance notice before the FMLA leave is to begin if the need for leave is foreseeable. 29 C.F.R. §825.302(a).
  • If 30 days advance notice is not practicable, such as lack of knowledge as to when leave would be required, notice must be given as soon as practicable. 29 C.F.R. §825.302(a).
  • Employee is not required to expressly assert rights under the FMLA, but must provide “at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave.”  29 C.F.R. §825.302(b).  However, simply saying you’re sick is not enough. See, Walton v. Ford Motor Co., 424 F.3d 481 (6th Cir. 2005); Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001).

Employer must designate time off as FMLA leave in order for it to count as FMLA leave.

  • Employer is generally required to provide employees with oral or written notice when leave is designated as FMLA leave within 2 days. If oral, must be followed with written notice. 29 C.F.R. §825.208(b)(2).
  • Employer can provisionally designate leave as FMLA pending receipt of FMLA certification. 29 C.F.R. §825.307.
  • Employer may only retroactively designate leave as FMLA qualifying where employee learns that leave was FMLA qualifying only after leave began. 29 C.F.R. §825.208(d).

Employer may require a medical certification of a serious health condition from a health care provider. 29 U.S.C. §2613(a).

  • Notice of requirement for medical certification must be in writing. 29 C.F.R. §825.305(a).
  • The certification (form WH-380) is sufficient if it provides the date the serious health condition began, its probable duration, relevant medical facts, and a statement that the employee was unable to work. 29 U.S.C. §2613(b); 29 C.F.R. §825.306.
  • When it requests certification, employer must advise the employee of the anticipated consequences of the employee’s failure to provide adequate certification. 29 C.F.R. §825.305(d).
  • Where leave is foreseeable, the employee should provide medical certification before the leave begins. 29 C.F.R. §825.305(b).
  • When not possible, the employer can request a FMLA certification be provided to employer within 15 calendar days, unless not practicable under the circumstances. See, Frazier v. Honda of America, 431 F.3d 563 (6th Cir. 2005); 29 C.F.R. §825.305(b).

Employer can challenge the employee’s medical certification.

  • If the certification is incomplete, the employer must provide the employee with a reasonable opportunity to cure the deficiency. 29 C.F.R. §825.305(d).
  • If the employer questions the validity of a certification, with employee’s permission, a medical provider representing the employer may contact employee’s health care provider to clarify certification or verify authenticity (i.e., doctor-to-doctor contact). 29 C.F.R. §825.307(a).
  • If an employer has reasons to doubt the medical certification, it may also require employee to obtain a second (and third) medical opinions. 29 C.F.R. §825.307(a)(2), (b) and (c).  These must be at the employer’s expense.

After leave, employer must return the employee to the same or equivalent position with equivalent pay, benefits and other terms and conditions of employment. 29 U.S.C. §2614(1).

  • An employer may implement a policy that requires all employees to obtain medical certification of their ability to return to work. 29 U.S.C. §2614(a)(4); 29 C.F.R §825.310(a).
  • If an employer requires a medical exam of an employee returning from leave; it can do so only if the employee has a disability under the ADA and exam is job related and consistent with business necessity or required by a collective bargaining agreement.
  • Termination of employee on FMLA leave is permitted where the employer can show that it would have discharged the employee even had he/she not been on leave. 29 C.F.R. §825.216(a); Kohl’s v. Beverly Enterprises, 259 F.3d 799 (7th Cir. 2001).

Where two or more businesses exercise some control over the work or the working conditions of an employee, as with temporary agency employees, the businesses are generally considered joint employers under the FMLA. 29 C.F.R. §825.106.

  • Employees jointly employed by two employers must be counted by both employers in determining employer coverage and employee eligibility. 29 C.F.R. §825.106(b) and (d); Dinkins v. Varsity Contractors, Inc.,04-C-1438, 10 W.H. Cases. 2d 760 (N.D. Ill. 2005); DOL Opinion Letter, July 7, 1994 (time spent counts toward eligibility).
  • An employee on leave from secondary employer is considered employed by the secondary employer, and must be counted for coverage and eligibility purposes, if there is a reasonable expectation that the employee will return to work for that employer. 29 C.F.R. §825.106(d).
  • In such situations, only the primary employer is responsible for giving required notices to its employees, providing FMLA leave and maintaining health benefits. 29 C.F.R. §825.106(c).
  • Primary employer is the employer who has authority to hire/fire, assign/place the employee, make payroll, and provide employee benefits. 29 C.F.R. §825.106(c). Usually the temporary agency would be the primary employer.

New Leave Rights Granted to Families of Soldiers

For the first time since it was enacted in 1993, the FMLA has been expanded to give some employees new leave rights. These amendments, providing leave for employees with family members in the armed forces, which was signed by President Bush on January 28, creates two new categories of FMLA leave for the relatives of military personnel. Effective immediately, a spouse, child, parent or next of kin of a member of the Armed Forces (including a member of the National Guard or Reserves) may take up to 26 work weeks of leave to care for the soldier if he or she is "undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness." A "serious injury or illness" is defined as one that was incurred in the line of duty and may render the soldier medically unfit to perform the duties of office, grade, rank or rating.

The new legislation also permits an employee to take FMLA leave for any "qualifying exigency" - as that term will be defined by the DOL in forthcoming regulations - arising out of the fact that the employee's spouse, child or parent is on active duty, or has been notified of an impending call or order to active duty, in the Armed Forces.  Note that this provision of the statute is not effective until the DOL issues final regulations defining "qualifying exigency."

Be aware of applicable state laws, or, in Indiana, the lack thereof:

  • 38 states and the District of Columbia have FMLA laws that apply to public and/or private sector employees.  Indiana is not one of them.
  • 19 states and D.C. have FMLA laws that apply to some private employers, including CA, CT, D.C., HI, IA, KY, LA, ME, MA, MN, MT, NH, NJ, NC, OR, RI, TN, VT, WA, and WI.
  • Some states (i.e., MO, MA, TN) have laws which apply to pregnancy leave for females only.  Again, Indiana is not on this list.
  • In Indiana, the only statutory right to leave for employees is the FMLA.

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“It is the spirit and not the form of law that keeps justice alive.”
U.S. Supreme Court Justice Earl Warren

The DeBrota Law Firm LLC, an Indianapolis based employment law firm, provides mediation services, consultations and employee or employer litigation representation in central Indiana and throughout the state. Amy Ficklin DeBrota represents employees with claims for unpaid wages or overtime, unpaid commissions, breach of employment contract, discrimination, equal pay, retaliation, whistleblower actions, as well as other types of employment related legal claims under federal and Indiana state law. She has special interest and experience in representing nurses, doctors, veterinarians and other health care professionals with their employment issues. Further, she provides consultations with small and medium sized employers who are interested in avoiding employment based lawsuits. Ms. DeBrota is not only a lawyer. She is also a registered Indiana mediator who is available to travel to or host mediations regarding employment disputes, personal injury claims, and general civil litigation. She has the legal knowledge and years of experience to allow her to effectively communicate with individuals who are experienced with the law, and with those for whom the legal system is unfamiliar, in order to help everyone concerned realize the benefits of an agreed settlement. Ms. DeBrota is a dedicated, effective Indiana employment law attorney and mediator based in Indianapolis, Indiana.