VOLUME I Chapter 11 Family and Medical Leave Act

• Jurisdiction: South Carolina

Chapter 11 Family and Medical Leave Act Ellison F. McCoy Jackson Lewis P.C.

I. Introduction and Overview

The purpose of the Family and Medical Leave Act (FMLA), codified at 29 U.S.C. §§ 2601, et seq. (2015), is "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote a national interest in preserving family integrity" by permitting employees to take unpaid leave for family or medical purposes without fear of losing their jobs.¹ In general, the FMLA attempts to accomplish this purpose by providing up to 12 weeks of unpaid leave in any 12-month period for one or a combination of the following qualifying events: (1) the birth of a child; (2) the placement of a child; (3) the serious health condition of the employee; (4) the serious health condition of the employee's spouse, child, or parent.

In 2008, the FMLA was amended to allow leave under certain circumstances to family members of military servicemembers. This type of FMLA leave can even be extended up to 26 work weeks in a single 12-month period when the employee is caring for a covered servicemember with a serious injury or illness. In 2009, the FMLA was amended again to further clarify those military family leave provisions.

Congress gave the Department of Labor (DOL) enforcement authority for the FMLA. This includes the authority to issue regulations interpreting the provisions of the FMLA. The DOL first issued final regulations interpreting the FMLA in 1995. On November 17, 2008, the DOL published a revised set of final regulations interpreting the FMLA. These final regulations took effect on January 16, 2009. The regulations have been further amended by the DOL in 2013 and 2015 to make minor revisions.

II. Definitions of Key Terms

A. Employer

The FMLA defines "employer" as any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.² The legal entity that employs the employee is the "employer" under the FMLA. Thus, a corporation, rather than its separate divisions, is a single employer. In determining whether an employer has the requisite number of employees, the employer must include its full-time workers, part-time workers, and workers on leaves of absence if their return to employment is reasonably expected.³ However, employees on layoff should not be counted.⁴

The definition of "employer" also includes any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.⁵ This language is the same language that is used in the Fair Labor Standards Act (FLSA), and courts have determined that the FMLA, like the FLSA, can create individual liability for supervisors.⁶

The definition of "employer" also includes any successor in interest of an employer.⁷ Application of the successor-in-interest rule will often arise when businesses are bought or sold. In determining whether a subsequent employer is a successor in interest, the Department of Labor will consider the following factors:

(1) Substantial continuity in business operations
(2) Use of same plant or facilities
(3) Continuity of workforce
(4) Similarity ofjobs and working conditions
(5) Similarity of supervisory personnel
(6) Similarity in machinery, equipment, production methods
(7) Similarity of products and services; and
(8) Ability of predecessor to provide complete relief⁸

If a subsequent employer is determined to be a successor in interest, the predecessor's employees are entitled to FMLA rights as if they were employed continuously by one employer.⁹

Under the FMLA, a "public agency" is considered an employer.¹⁰ All federal, state, and local governments and agencies are considered public agencies subject to the provisions of the FMLA.¹¹ The FMLA provides that any entity which satisfies the definition of "public agency" found in the FLSA automatically qualifies as an employer regardless of how many people the agency employs.¹²

Another way an entity may qualify as an "employer" without independently employing the requisite number of employees is through the concept of integrated employment.¹³ The determination that separate entities are a single, or "integrated," employer may occur if the entities have the following characteristics:

• Common management
• Interrelated operations
• Centralized control of labor relations and
• Degree of common ownership/financial control¹⁴

In deciding whether separate entities constitute an integrated employer, the Department of Labor will consider the totality of the circumstances to determine if the above factors are present. When the test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage and employee eligibility.¹⁵

The concept of joint employment can also result in a finding of "employer" status even though an entity does not appear to employ the requisite number of employees.¹⁶A determination of whether a joint employment relationship exists is made by viewing the entire relationship in its totality.¹⁷ In joint employment relationships, only the primary employer (defined as the employer with authority/responsibility to hire and fire, assign the employee, make payroll, and provide employment benefits) is responsible for giving notice to employees, granting leave, and providing benefits and job restoration.¹⁸ However, both employers must count the employees who are jointly employed in order to determine employer coverage and employee eligibility.¹⁹

The regulations state that joint employment will ordinarily be found to exist when a temporary staffing agency supplies employees to a client employer. In the typical temporary staffing situation, the staffing agency is considered the primary employer and thus is responsible for issuing notice, granting leave, maintaining benefits, and reinstating the employee following leave. In the case of reinstatement of a temporary employee, the client employer must cooperate with the temporary staffing agency to allow the reinstatement of the returning employee if the client employer continues to use temporary labor from that staffing agency.

B. Eligible Employee

Under 29 U.S.C. Section 2611(2), an "eligible employee" is defined as an employee who:

(1) Has been employed for at least 12 months by the employer. The 12 months need not be consecutive.²⁰ However, the employer is not required to include periods of employment prior to a break in service of more than 7 years, unless such break in service resulted from a military service obligation or is covered by a collective bargaining agreement.²¹
(2) Has worked for the employer for at least 1,250 hours during the 12 months preceding the commencement of the leave. Whether or not an employee has worked the minimum 1,250 hours is determined pursuant to the compensable-hours rule of the FLSA.²² Any accurate accounting of hours may be used; however, if the employer does not maintain an accurate record of hours worked by an employee (such as for employees who are exempt under the FLSA), the employer has the burden of showing that the employee has not worked the requisite hours. Neither paid nor unpaid leave taken by the employee will count as hours of service to satisfy this rule.²³
(3) Is employed at a work site where the employer employs at least 50 employees within a 75-mile radius as measured by surface road miles. The determination as to whether the employer has 50 employees employed within 75 miles should be made at the time the employee gives notice of the need for leave.²⁴

The determination of whether an employee is eligible for leave under the FMLA must be made as of the date the leave is to start.²⁵ If an employee is not eligible for FMLA leave at the time the leave starts, but becomes eligible during the leave, then any leave time used after the eligibility requirements are met would be considered "FMLA leave."²⁶

C. Employment Benefits

The term "employment benefits" includes all benefits provided or made available to employees by an employer including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions regardless of whether such benefits are provided by a practice or written policy of an employer or through an "employee benefit plan," as defined in the Employee Retirement Income Security Act

(ERISA).²⁷

D. Health Care Provider

The term "health care provider" includes a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which the doctor practices.²⁸The Regulations further include within the definition of "health care provider":

• Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice in the state and performing within the scope of their practices;
• Nurse practitioners, nurse-midwives, clinical social workers, and physician assistants authorized to practice under state law and performing within the scope of their practices;
• Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
• Any health care provider from whom an employer or a group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
• A health care provider as defined above who practices in a country other than the United States and who is licensed to practice in accordance with the laws and regulations of that country.²⁹

E. Serious Health Condition

Under 29 U.S.C. Section 2611(11), "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves (1) inpatient care in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with...