Shelly Wallace Johnson | , , , , , , , ,| By
Owning a small business can be stressful, especially when making sure you are compliant with all the laws and regulations. The Family and Medical Leave Act (FMLA) is a probably something you’ve heard about, but do you understand what it is? How do you determine if you have to offer it? There are many questions regarding FMLA that can’t be answered in one blog, but hopefully this clears up some of the basics.
What is the FMLA?
Here’s a brief explanation of the FMLA: an eligible employee can take up to twelve weeks of unpaid leave, in a twelve-month period, and keep their job and group health insurance for a serious medical condition. Employees qualify for FMLA due to a family member or personal illness (see the US Department of Labor for specifics). In order to be eligible, an employee must have worked for your company for 1,250 hours during the past year. Employees do not have to take all twelve weeks at once. They can use the time intermittently throughout the year (although this does make a headache for your HR staff).
Employees working for a small business under 50 people, in the private sector, do not qualify for FMLA. The company does not have to offer it. Of course, there are some that offer unpaid leave. All public sector employees qualify. All qualifying employers must provide posters that are displayed in a commonly seen area and given to an employee at the time of hire.
How Employees Request FMLA Leave
Employees who wish to apply for FMLA leave and meet the qualifications mentioned above, work with the HR, boss, or leadership team. There is generally paperwork required to complete by the employee that includes a medical certification and sign off from a doctor and/or medical professional.
How Claims Are Filed
If an employee feels like were unjustly denied or their rights violated under FMLA, the US Department of Labor Wage and Hour Division is the enforcing agency. The employee would start a claim by contacting the Wage and Hour Division. Keep in mind an employee is not automatically eligible for leave. A company can dispute a bogus claim. We have seen this in the news recently.
FMLA Cases in the News
Guzman v. Brown County, No. 16-3599 (7th Cir., Mar. 7, 2018). Guzman filed an FMLA suit against Brown County, she was a 9-1-1 operator. She claimed to have sleep apnea. Guzman was transferred from the third shift to day shift. She received many disciplinary actions resulting in termination due to being late to work. She never mentioned the sleep apnea until the day she was fired. The claim was ultimately dismissed.
A second case is Brown v. Eastern Main Medical Center. An employee stated she suffered from a chronic condition that would cause her issues with making it to work on time. She collected several tardies which resulted in her termination. The employee sued claiming intermittent FMLA. Unfortunately, her illness never caused an issue at work or caused her to miss work, it just affected her arriving on time. The court cited “Intermittent leave is granted when an employee needs to miss work for a specific period of time, such as a doctor’s appointment or when a condition suddenly becomes incapacitating.”
Interference and Retaliation Family Medical Leave Act Claims
Interference and retaliation claims are something to be aware of. An employer does have the ability to terminate an employee while on FMLA or as soon as they return under certain circumstances. A few examples are if:
- An employee has documented performance issues prior to leaving
- A reduction in force decision was made prior to the employee leave
- After an employee returns from FMLA leave, they have the same issues as before
Janczak v. Tulsa Winch Inc. shows an example of an interference claim when Janczak was terminated during FMLA leave because the position was eliminated. Janczak showed enough evidence to proceed to trial because the decision for a reduction in force was not made prior to his leave, it was made during.
Handling an FMLA claim can be difficult, it depends on the circumstances, and it is not going to be the same with each employee. It’s important to familiarize yourself with the Family Medical Leave Act, what types of things fall under it is a necessity for any small business, and for any human resource professional. Also it’s important to find an experienced HR professional, consultant or mentor that can help you better understand how to apply, handle question, and traverse the world of FMLA.