4.9 The Family and Medical Leave Act (fmla)

LibraryThe Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

4.9 THE FAMILY AND MEDICAL LEAVE ACT (FMLA) 216

4.901 In General. The Family and Medical Leave Act (FMLA) is administered and enforced by the Wage and Hour Division of the DOL. 217 It entitles eligible employees to take unpaid family care or medical leaves of absence of up to 12 weeks in any 12-month period. It also allows certain family members of Armed Forces service members to take up to 12 weeks of leave in any 12-month period for a qualifying exigency and up to 26 weeks of leave in any 12-month period to care for an injured servicemember.

4.902 Coverage.

A. In General. The FMLA covers any employer that has fifty or more employees for each working day during each of 20 or more calendar

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workweeks in the current or preceding calendar year. 218 The 20 or more calendar workweeks need not be consecutive workweeks. 219 Generally, all employees, including temporary and part-time, are counted in determining whether an employer is a covered employer. 220

B. Employers. Determining who is an employer under the FMLA is important. In some circumstances, the number of persons employed by one company will be aggregated with the number of persons employed by one or more other companies in determining coverage. One employer may have an interest in another, and the two companies may be regarded as an "integrated employer." 221

The FMLA also recognizes the concept of "joint employment." If two or more businesses exercise some control over the work or working conditions of an employee, the businesses may be joint employers under the FMLA. 222 Jointly employed employees are counted by both employers in determining coverage. 223 The DOL has recently rescinded some of its earlier guidance on both joint employment and independent contractor enforcement actions. 224

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An employer may be covered because it is a "successor in interest." 225 Employees of a successor in interest retain the same entitlements they had under its predecessor. 226 The factors to be considered in determining whether an employer is a successor in interest include: (i) substantial continuity of the same business operations; (ii) use of the same plant; (iii) continuity of the work force; (iv) similarity of jobs and working conditions; (v) similarity of supervisory personnel; (vi) similarity in machinery, equipment, and production methods; (vii) similarity of products or services; and (viii) the ability of the predecessor to provide relief. 227 Finally, like the FLSA, the term "employer" in the FMLA includes any person who acts directly or indirectly in the interest of an employer toward any of the employer's employees. 228 Individuals such as corporate officers "acting in the interest of an employer" are individually liable for violations of the FMLA. 229

C. Primary Employer. Only the primary employer is responsible for giving required notices to employees, providing FMLA leave, and maintaining health benefits for the employee on leave. 230

D. Temporary Employees. Temporary employees are often from agencies, and a joint employment situation is created when they are assigned to work for a customer of the agency. 231 The customer of the agency, even if it is not covered by the FMLA, may not interfere with the temporary worker's attempt to exercise rights under the FMLA and cannot refuse to accept a temporary worker returning from a covered leave, unless there is some other reason for declining, such as no more work. 232

4.903 Eligible Employees.

A. In General. To be eligible for FMLA leave, an employee must have worked for the employer for at least 12 months and for at least 1,250

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hours during the immediately preceding 12-month period 233 and be employed at a worksite by an employer who employs fifty or more employees within 75 miles of that worksite. 234 This determination is made as of the date the leave is to commence. 235

B. "Working for the Employer for at Least 12 Months." "Working for the employer for at least 12 months" does not require that the months be consecutive. Any period of employment before a break in service of seven years or more must be counted. 236 Additionally, periods of employment preceding a break in service of more than seven years must be counted when (i) the break in service occurred because of the employee's fulfillment of his or her National Guard or Reserve military service obligation and (ii) a written agreement exists between the employer and the employee evidencing the employer's intent to rehire the employee after a break in service. 237 If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave during which other benefits or compensation are provided by the employer, the week counts as a week of employment. 238

C. "Hours Worked." "Hours worked," for purposes of determining whether the employee has satisfied the requirement of working 1,250 hours, is defined as in the Fair Labor Standards Act (FLSA) for determining compensable hours of work. 239 Pursuant to the Uniformed Services Employment and Reemployment Rights Act (USERRA), employees returning from fulfilling their National Guard or Reserve military obligations must be credited with the hours of service that they would have performed but for the period of military service. 240

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D. "Fifty Employees . . . Within 75 Miles." Whether fifty employees are employed within 75 miles of the job site is determined by calculating the shortest route from the facility where the eligible employee needing leave is employed when the employee gives notice of the need for leave. 241

4.904 Events That Trigger Entitlement to FMLA Leave.

A. In General. An eligible employee is entitled to leave upon the occurrence of one or more of the following events:

1. The birth of a child; 242
2. The placement of a child in the employee's household for adoption or foster care; 243
3. The need to provide care for a spouse, parent, son, or daughter who has a serious health condition; 244
4. Where a serious health condition prohibits the employee from performing the functions of his or her job (this includes medical conditions resulting from pregnancy and childbirth); 245
5. Because of any qualifying exigency arising from the fact that the employee's spouse, son, daughter, or parent is on covered active duty (to a foreign country) as a member of the Armed Forces or the reserve component of the Armed Forces; 246 and
6. The need to provide care for the spouse, son, daughter, parent, or next of kin of a covered service member, meaning a member of the Armed Forces (including National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is

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otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness or a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the five-year period preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy. 247

B. "Serious Health Condition." The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves the following:

1. In-patient care in a hospital, hospice, or residential medical facility; or
2. Continued treatment by a health care provider. 248

C. "Treatment." "Treatment" includes, but is not limited to, examinations to determine if a serious health condition exists and to evaluate the condition.

A regimen of continuing treatment includes a course of prescription medication or therapy requiring special equipment. 249

D. "Health Care Provider." The FMLA's definition of "health care provider" includes doctors of medicine or osteopathy, podiatrists, dentists, clinical psychologists, optometrists, chiropractors (with some limitations), nurse practitioners, nurse midwives, clinical social workers, and any health care provider recognized by the employer or accepted by the employer's group health plan. 250

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4.905 Notice from Employee. The employer has a right to 30 days' advance notice from the employee, if practicable. Otherwise, notice may be given as soon as practicable. 251 For leave taken due to a qualifying exigency, the employee must provide as much notice as is reasonable and practicable. 252 If the required notice has not been given, the employer can delay (but not deny) commencement of leave. 253

4.906 Length and Timing of FMLA Leave.

A. In General. Eligible employees can take up to 12 workweeks of FMLA leave during any 12-month period for the following reasons: (i) the birth of a child; (ii) the placement of a child for adoption; (iii) the need to provide care to a spouse, parent, son, or daughter who has a serious health condition; (iv) the serious health condition of the employee; and (v) qualifying exigency leave. Eligible employees can take up to 26 workweeks of FMLA leave during any 12-month period to provide care for qualified servicemembers or veterans. 254

B. Calculating FMLA Leave. The general rule is that employers are required to apply the same method for all employees in calculating the 12-month period during which employees are entitled to take their leave. 255 Employers have four different options for calculating the 12-month period. 256 Each of these options requires the employer to notify its employees of how the 12-month period is calculated. For understandable reasons, most employers have adopted a written policy that the 12-month period in which the employee is entitled to take FMLA leave begins to run on the date the employee returns from a prior use of FMLA leave. Employers

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may choose to use a calendar year option instead, but that method would permit each employee to take up to 12 weeks of FMLA...

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