§21.3 Federal Family and Medical Leave Act of 1993
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§21.3-1 In General
Generally, an employee who is working at a site with 50 or more employees within a 75-mile radius is eligible for leave under the Family and Medical Leave Act of 1993 (FMLA) (29 USC §2601-2654) if the employee has been working for the employer for at least 12 months and has worked 1,250 hours in the 12 months immediately preceding the request for leave. 29 USC §2611(2). Benefits available for an eligible employee include up to 12 weeks per leave year of unpaid leave for the birth or placement of a child for adoption or foster care, to care for an immediate family member who suffers from a serious health condition, or for the employee's own serious health condition. 29 USC §2612(a)(1). An employee may choose, or employers may require, that the employee exhaust paid leave before taking any unpaid leave. 29 USC §2612(d). During a period of protected leave, the employer must provide the employee with benefit continuation as if the employee were still at work. An employee who returns to work must be reinstated to his or her former position or an equivalent position. 29 USC §2614.
§21.3-2 Covered Employers
§21.3-2(a) Individual Employers
The Family and Medical Leave Act of 1993 (FMLA) covers all employers who employ 50 or more persons for each working day during each of 20 or more calendar workweeks (not necessarily consecutive) in the current or preceding calendar year. 29 USC §2611(4)(A); 29 CFR §§825.104(a), 825.105. This standard is referred to as the payroll test. See Tyler v. IBEW, Local Union 130, 2000 US Dist LEXIS 197, at *5, 163 LRRM (BNA) 2263 (ED La Jan 10, 2000) ("the test is whether the employee started or ended employment that year, and, if so, when"). The number of employees is determined at the time an employee requests leave. Under the payroll test, all employees on the payroll are counted, regardless of whether the employee receives pay. Tyler, 2000 US Dist LEXIS 1975, at *6. For example, employees on unpaid leaves of absence and disciplinary suspension who have a reasonable expectation of returning to work must be counted. Part-time employees and leased employees must also be counted in determining employer coverage. However, laid-off employees and volunteers who are not on the employer's payroll need not be counted. FMLA Advisory Op No 7 (Oct 8, 1993) (available at < www.dol.gov/WHD/opinion/fmla/prior2002/FMLA-7.pdf >).
§21.3-2(b) Leasing Agencies; Joint Employment
The leasing agency for a temporary employee is generally treated as the primary employer of the leased employee, and must provide Family and Medical Leave Act of 1993 (FMLA) leave notices and FMLA leave, continue health care benefits, keep records related to FMLA leave, and restore the employee to work after FMLA leave. An employer is the primary employer if it has the authority to hire and fire the employee, decide where or if he or she is placed, assign work, pay the employee, and provide benefits. A secondary employer or lessee of leased employees also has responsibilities under FMLA. 29 CFR §825.106. See §21.5-2.
§21.3-2(c) Individual Managers and Supervisors
Adopting the broad definition of employer as used in the Fair Labor Standards Act of 1938 (FLSA) (29 USC §203(d)), courts generally find that supervisors can be individually liable for violations under the Family and Medical Leave Act of 1993 (FMLA). In Carpenter v. Refrigeration Sales Corp., 49 F Supp2d 1028 (ND Ohio 1999), the court held the Human Resources manager of the company, who was responsible for his employer's compliance with FMLA, individually liable. He exercised sufficient control over the employee's employment, he had discussed the employee's illness with her, and, most significantly, he made the decision to terminate employment despite her illness. Carpenter, 49 F Supp2d at 1030-1031. See Cantley v. Simmons, 179 F Supp2d 654, 655-658 (SD W Va 2002) (public employee supervisors); Brunelle v. Cytec Plastics, Inc., 225 F Supp2d 67, 82 (D Me 2002); Richardson v. CVS Corp., 207 F Supp2d 733, 741-744 (ED Tenn 2001); see also Morrow v. Putnam, 142 F Supp2d 1271, 1275 (D Nev 2001). But see Carter v. Rental Uniform Serv., 977 F Supp 753, 759-760 (WD Va 1997); Frizzell v. Southwest Motor Freight, 906 F Supp 441 (ED Tenn 1995), aff'd in part, rev'd in part, 154 F3d 641 (6th Cir 1998).
§21.3-2(d) Successor in Interest
A successor in interest to a covered employer may qualify as a covered employer. 29 CFR §825.107. Whether a successor in interest exists depends on a number of factors, including continuity of business operations, use of the same plant, and continuity of workforce. The factors are applied and analyzed on a case-by-case basis, and the circumstances are viewed in their totality. 29 CFR §825.107.
§21.3-3 Eligible Employees
To be eligible for leave under the Family and Medical Leave Act of 1993 (FMLA), an employee must meet all three of the following criteria:
(1) The employee must have been employed by the employer for at least 12 months. These 12 months need not be consecutive, but with limited exceptions, must have occurred within the preceding seven years. 29 CFR §825.110(b)(1). Service beyond the seven-year period must be considered if the employee was on active duty with the National Guard or reserve, or there was a written agreement that the employer intended to rehire the employee after the break in service. 29 CFR §825.110(b)(2). If an employee is on the payroll for any part of a week, including periods of paid or unpaid leave during which the employer pays other benefits or compensation, the week counts as a week of employment. To determine whether intermittent casual employment qualifies as at least 12 months, 52 weeks are deemed to be equal to 12 months. 29 USC §2611(2)(A); 29 CFR §825.110(b)(3).
(2) The employee must have worked at least 1,250 actual hours for a covered employer during the 12-month period immediately before the leave commences. Only actual hours worked count toward the 1,250 hours, using the principles established under the Fair Labor Standards Act of 1938 (FLSA). 29 USC §2611(2)(A), (C); 29 CFR §825.110(c). That is, any period of paid or unpaid leave or any period of family and medical leave does not count. Each overtime hour counts as one hour worked. If the employer does not keep records of actual hours worked (e.g., employees are exempt under the FLSA), the employer has the burden of showing the employee has not worked the minimum number of hours for FMLA coverage. 29 CFR §825.110(c)(3). If the employer does not meet this burden, the employee is deemed to have met the hours-of-service requirement.
NOTE: Hours spent in military service must be counted as hours worked for employees serving in the National Guard or reserve. Thus, in determining whether an employee has worked the necessary 1,250 hours to qualify for eligibility, the hours the employee would have worked but for the military service must be counted as if actually worked. 29 CFR §825.110(c)(2).
(3) The employee must be "employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite." 29 CFR §825.110(a)(3); 29 USC §2611(2)(B). The number of employees is determined at the time the employee gives notice for leave, and the 75 miles are measured in surface miles, not "as the crow flies" miles. 29 CFR §§825.110(e), 825.111(b).
NOTE: Because employees become eligible for Oregon Family Leave Act (OFLA) leave after being employed for 180 days, an employee may be eligible for OFLA leave before qualifying for FMLA leave. See §21.2-2(c). Leave taken under OFLA before an employee becomes eligible for FMLA does not reduce the employee's 12-week FMLA entitlement, because non-FMLA leave does not count against an employee's FMLA leave entitlement. 29 CFR §§825.207(c), 825.701. Under this statutory framework, employees may be entitled to "double-dip" leave. See §21.2-4 for an example of double-dipping.
PRACTICE TIP: As an initial matter, an employer should determine whether the employee requesting family medical leave is eligible for that leave. That is, will the employee have worked a sufficient number of hours and for a sufficient length of time to qualify for protected leave at the time the leave is expected to commence?
If an employee notifies the employer of need for FMLA leave before the employee meets these eligibility criteria, the employer must either confirm the employee's eligibility or advise the employee, in writing, when the eligibility requirement is met. 29 CFR §825.300(d)(5).
§21.3-4 Purposes for Which Family Leave May Be Taken
§21.3-4(a) In General
Leave under the Family and Medical Leave Act of 1993 (FMLA) may be taken for five purposes:
(1) To care for the employee's newborn child or newly placed adopted or foster child (parental leave). 29 USC §§2611(12), 2612(a)(1)(A); 29 CFR §§825.112(a)(1), 825.120.
(2) To care for a spouse, parent, or child with a serious health condition (referred to as serious health condition leave). 29 USC §2612(a)(1)(C); 29 CFR §§825.112(a)(3), 825.113. The word spouse means a husband or wife as recognized under state marriage laws where the employee resides, including common-law marriage in states where it is recognized. 29 CFR §825.122(a). Common-law marriage is not recognized in Oregon. ORS 106.010; Huard v. McTeigh, 113 Or 279, 232 P 658 (1925). To the extent there has been confusion on the issue, the U.S. Department of Labor has issued guidance recognizing that same-sex partners may be eligible to take leave for each other's biological children if they meet the definition of acting in loco parentis for each other's children. 29 CFR §825.122(b); see Department of Labor, Wage and Hour Division, Administrator's Interpretation No. 2010-3 (available at < www.dol.gov/WHD/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm >).
(3) To recover or seek treatment for the employee's own serious health condition (referred to as...
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