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HR Matters E-Tips
This Week's Tip: Placing Employees on FMLA Leave Q&A
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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This Week's Tip: Placing Employees on FMLA Leave Q&A
You can, and should, require that leaves be designated as covered by
the FMLA whenever the employee is eligible. If you don't properly place
eligible employees on FMLA leave, you may find that they can take more
than their 12-week entitlement.
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This Week's Tip: Placing
Employees on FMLA Leave Q&A
Q: We have an employee who has a medical problem that qualifies
as a
serious health condition under the Family and Medical Leave Act
(FMLA). She will go on paid disability leave starting next week. When
we notified her we were counting the leave against her FMLA
entitlement, she objected. Can she keep us from making the FMLA
designation?
A: In short, no. If the employee is eligible for the FMLA and her
medical
condition qualifies as a serious health condition under the Act, the law
covers her and her time off should be designated as FMLA leave.
The employee is eligible under the FMLA if she meets the following three
criteria:
1. she has been employed by your organization for at least 12
months (not necessarily 12 consecutive months);
2. has worked 1,250 hours in the preceding 12-month period; and
3. works at a job site with 50 or more employees or within 75
miles
of 50 or more employees. (See 29 U.S.C. §2611(2).)
The FMLA defines "serious health condition" broadly to include any
illness, injury, impairment, or physical or mental condition that
involves
either inpatient care or continuing treatment by a health care provider.
(See 29 U.S.C. §2612(a)(1)(D).) Typically, if the employee qualifies for
paid disability, she likely will meet the FMLA's serious health
condition
definition.
The employee cannot choose when she will take FMLA leave. If she is
eligible, she is protected by the law and automatically entitled to all
of its
rights, including job protection and benefits continuation. (See 29
U.S.C.
§2612(a)(1).)
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Editor's Note regarding citations used in this article:
References to "U.S.C." and "C.F.R." refer to the United States Code and
the Code of Federal Regulations. They are the official government
publications for federal statutes and regulations, respectively.
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Further, under the FMLA regulations, it is the employer's responsibility
to
identify whether the requested leave qualifies as covered leave and to
designate it as leave that counts against the employee's 12-week
entitlement. (See 29 C.F.R. §825.208.) Thus, according to a
Department of Labor Wage and Hour Opinion Letter, if you determine
that the leave qualifies under the Act, you can classify the leave as
FMLA even if the employee has not specifically requested it.
You have a particularly compelling reason to place all eligible
employees
on FMLA leave. According to the regulations, if you do not, you cannot
count the absence toward the employee's annual 12 weeks of entitled
leave. (See 29 C.F.R. §§825.208(c) and 825.700(a).) In fact, to deduct
the time from the employee's annual entitlement, you must notify the
employee in writing that the leave is designated as FMLA and will count
against the employee's 12-week allotment. (See 29 C.F.R.
§825.301(b)(1).)
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Without this notice, the employee would continue to have all the 12-
weeks of FMLA, job-protected leave to use at a later date. Further, even
if you do not designate the time as FMLA, an eligible employee is still
protected by the Act. This means that you could be liable for any
violations of the law during that leave, even though you did not count
the
time against her entitlement. |
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Several circuit courts disagree regarding the validity of these regulations
requiring the designation of leave. The Eleventh Circuit Court of Appeals
(which covers Alabama, Florida, and Georgia) determined that one of
them, 29 C.F.R. §825.208, is invalid. In McGregor v. AutoZone, 180
F.3d 1305 (11th Cir. 1999), the court found that the regulation adds
requirements and grants entitlements beyond those given by the statute
and is inconsistent with the statute's provision limiting covered leave to
12 weeks.
The Sixth Circuit Court of Appeals (which covers Kentucky, Michigan,
Ohio, and Tennessee) disagrees, however, and determined 29 C.F.R.
§825.208 is valid. In Plant v. Morton International, Inc., 212 F.3d 1929
(6th Cir. 2000), the court ruled that Congress only set minimum leave
standards and the fact an employee could receive more than the 12
weeks specified is not inconsistent with the legislative intent.
Adding to the confusion, the Supreme Court, in Ragsdale v. Wolverine
Worldwide Inc., 535 U.S. 81 (2002), determined that 29 C.F.R.
§825.700(a), which also requires employers to designate FMLA leave
properly, is invalid since it would allow employees who do not receive
notice of their FMLA leave a right to more than the 12 weeks required by
the law. Thus, employers that give more generous leave amounts than
is required may not be forced to provide additional leave simply because
they failed to provide the necessary notice. However, the Court did not
address the validity of the other regulations requiring written notice of
FMLA designation and left them in tact.
Because of these conflicting court interpretations, any time an employee
qualifies for FMLA leave, your safest approach is to immediately notify
the employee in writing that the time counts against the 12-week
entitlement. Then, you should follow all of the FMLA's provisions in
dealing with the leave. These steps will help you both avoid
unnecessary litigation and ensure that the leave is being properly used
and credited against the entitlement.
Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find more information on the designation of FMLA leave in
Leaves of Absence, Chapter 703, note 35.
If you do not subscribe to the Personnel Policy Manual or CD service,
and you'd like to use it free for 30 days to see if you like it, go to:
http://www.ppspublishers.com/service2.htm
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