64 J. Kan. Bar Assn. May, 22 (1995). FAMILY AND MEDICAL LEAVE ACT OF 1993.

• Author: Jay M. Rector

Kansas Bar Journals

Volume 64.

64 J. Kan. Bar Assn. May, 22 (1995).

FAMILY AND MEDICAL LEAVE ACT OF 1993

Journal of the Kansas Bar AssociationMay, 1995FAMILY AND MEDICAL LEAVE ACT OF 1993Jay M. RectorCopyright (c) 1995 by the Kansas Bar Association; Jay M. Rector

INTRODUCTION

Having survived at least two significant delays, a congressional challenge alleging undue influence, and calls by private organizations for a delayed effective date, the final regulations implementing the Family and Medical Leave Act of 1993 (FMLA or Act) were released January 5, 1995, to be effective February 6, 1995. [FN1] The Department of Labor (DOL) subsequently delayed the regulations' effective date to April 6, 1995. [FN2] The Act itself was originally effective August 5, 1993, unless a collective bargaining agreement was in effect on that date in which case the effective date was delayed until the earlier of February 5, 1994, or the date the collective bargaining agreement expired. [FN3]

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For those unfamiliar with the requirements of the FMLA, in the words of the DOL the governmental agency charged with its enforcement:

FMLA generally requires private sector employers of 50 or more employees, and public agencies, to provide up to 12 workweeks of paid, job-protected leave to eligible employees for certain specified family and medical reasons; to maintain eligible employees' pre-existing group health insurance coverage during periods of FMLA leave; and to restore eligible employees to their same or an equivalent position at the conclusion of their FMLA leave. [FN4] While the concept of family and medical leave as required by the FMLA appears simple, its mechanics are anything but so. This article endeavors to explore those mechanics, as modified by the now effective final regulations, in as clear and concise manner as possible given what might best be termed the FMLA's, at-times, "non-intuitive" approach to the subject matter.

2. PURPOSE

   The enactment of the FMLA was predicated on the twin concerns of the needs of the American workforce, and the development of so-called "high performance" organizations. [FN5] Congress made the following findings:

   1. [T]he number of single-parent households and two-parent households in which the single parent or both parents work is increasing significantly; 2. [I]t is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions; 3. [T]he lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting; 4. [T]here is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods; 5. [D]ue to the nature of the roles of men and women in our society, the primary responsibility for family care-taking often falls on women and such responsibility affects the working lives of women more than it affects the working lives of men; and 6. [E]mployment standards that apply to one gender only have serious potential for encouraging employers to discriminate against employees and applicants for employment who are of that gender. [FN6] It is also at least the opinion of the DOL that mandated family leave is to the advantage of both employers and employees:

   The FMLA is both intended and expected to benefit employers as well as their employees. A direct correlation exists between stability in the family and productivity in the workplace. FMLA will encourage the development of high-performance organizations. When workers can count on durable links to their workplace they are able to make their own full commitments to their jobs. The record of hearings on family and medical leave indicate the powerful productive advantages of stable workplace relationships, and the comparatively small costs of guaranteeing that those relationships will not be dissolved while workers attend to pressing family health obligations or their own serious illness. [FN7] While the DOL's goal of mutual employer-employee benefit is certainly to be lauded, only time will tell whether the law as currently drafted and construed can deliver on that promise. Given the complexities of the newly effective regulations, however, employers could hardly be blamed for having their doubts.

3. WHAT EMPLOYERS ARE COVERED BY THE ACT?

   Private sector employers must employ fifty or more employees for each working day during each of twenty or more calendar workweeks (not necessarily consecutive) in the current or immediately preceding calendar year in order to be covered by the FMLA. [FN8] Both full and part-time employees are counted for purposes of meeting the Act's employment threshold. [FN9] Public agencies and schools as well as private elementary and secondary schools, however, are covered employers without regard to the number of employees employed. [FN10] For purposes of determining employment, separate entities may be treated as a single employer if they meet a so-called "integrated employer" test. [FN11] The FMLA's final regulations provide that the determination of whether or not separate entities constitute a single employer is not determined by any single criteria,

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   but rather by the totality of the circumstances. [FN12] Factors that are considered include:

   . Common management; . Interrelation between operations; . Centralized control of labor relations; and . Degree of common ownership/financial control. [FN13]

   Special rules apply in the case of "joint employment" relationships.

   Employees on paid or unpaid leave, including FMLA leave, disciplinary suspension, etc., are counted for purposes of meeting the employment threshold as long as the employer has a reasonable expectation that the employee will later return to work. [FN14] Employees on layoff (whether indefinite or permanent) or permanent disability leave are not counted, as the continuing employer-employee relationship has been severed, at least temporarily. [FN15] Once the Act's threshold requirements have been satisfied, an employer remains covered until it no longer has employed fifty employees for twenty work-weeks in the current and preceding calendar year. [FN16]

   Special rules apply in the case of "joint employment" relationships. [FN17] Such relationships exist, for example, where an employee performs work which simultaneously benefits two or more employers as would be the case where an employer (the secondary employer) retains the services of an individual through a temporary help or leasing agency (the primary employer). [FN18] In joint employment relationships employees must be counted by both employers in order to determine coverage under the Act. [FN19] In other words, an employer who jointly employs twenty individuals from a temporary help agency along with thirty of its own permanent employees is covered by the FMLA. [FN20] The final regulations make clear that in joint employment relationships the primary employer remains responsible for giving required FMLA notices and providing FMLA leave itself. [FN21] While job restoration is also the responsibility of the primary employer, the secondary employer is responsible for accepting an employee returning from FMLA leave in place of a replacement employee, if the secondary employer continues to utilize an employee from the primary employer, and the primary employer chooses to place the employee with the secondary employer. [FN22] The secondary employer, whether or not covered by the FMLA, is also prohibited from interfering with a covered employee's attempts to exercise rights under the Act. [FN23]

   Employers may also be covered under the FMLA as' "successor employers." [FN24] When an employer is a successor employer, employees' entitlements are the same as if the employment by the predecessor and successor constituted continuous employment by a single employer. [FN25] Thus, a successor employer, whether or not it meets FMLA coverage criteria, must still grant leave for eligible employees who had provided appropriate notice to the predecessor or who wish to continue leave begun while employed by the predecessor. [FN26] In determining successorship the following factors are considered:

   . Substantial continuity of the same business operations; . Use of the same plant; . Continuity of the workforce; . Similarity of jobs and working conditions; . Similarity of supervisory personnel; . Similarity in machinery, equipment, and production methods; . Similarity of products or services; and . The ability of the predecessor to provide relief. [FN27] Once again, the determination of whether an employer is

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   a successor employer is not dependent upon a single criteria, but the totality of the circumstances. [FN28]

   Finally, of special interest to managers and corporate officers, the final regulations specifically provide that the definition of the term "employer" includes "any person who acts directly or indirectly in the interest of an employer to any of the employer's employees." [FN29] Thus, " a s under the FLSA Fair Labor Standards Act , individuals such as corporate officers 'acting in the interest of an employer' are individually liable for any violations of the requirements of FMLA." [FN30] Despite objections from several commentators that this provision could frustrate advancement to managerial positions and unnecessarily increase costs for insurance and bonding, the DOL...