BY: Julie Trent, Esq.
The following are some answers to frequently asked questions regarding the Family Medical Leave Act (“FMLA”):
Do I have to comply with FMLA if I have less than 50 employees?
No. FMLA applies only to employers with 50 or more employees. 29 C.F.R. § 825.104(a). However, you should be aware that employees can potentially rely on any policies, whether written or not, regarding health/childcare-related leave. So, for example, if you provide six weeks of maternity leave to some employees, you could be legally obligated to provide six weeks of maternity leave to all employees. It is therefore a good idea to regularly review your policies (whether written or merely “this is how we’ve done it in the past”) to make sure that they accurately reflect the benefits you intend to provide.
If I have 50 or more employees, under what circumstances do I have to grant FMLA leave, who is eligible for such leave, and is it paid or unpaid?
If you have 50 or more employees, you must grant FMLA leave to any “eligible employee” under the following four scenarios: (1) for the birth of a child; (2) when a child (or an adult who is incapable of “self care”) is adopted or placed with an employee for foster care; (3) to care for a spouse, son, daughter or parent with a serious health condition (in some instances including substance abuse treatment); and (4) when the employee has a serious health condition that makes him or her unable to perform their job functions (also including substance abuse treatment in some instances). 29 C.F.R. § 825.112. Leave for any one of the above situations is available to eligible male and female employees equally. 29 C.F.R. § 825.112(b). “Eligible employees” are those employees who have been employed for at least 12 months and 1,250 hours during the 12-month period preceding the leave. Such employees are allowed to take up to 12 weeks of job-protected, unpaid leave in a given year. 29 C.F.R. §§ 825.100(a), 825.110(a), and 825.207. Note that the unpaid nature of FMLA leave does not preclude an employee from using accrued paid sick or vacation days during their leave. 29 C.F.R. § 825.207.
When can I hire a replacement employee to perform the job duties of someone on FMLA leave?
The answer is: anytime. However, the catch is that the employee on FMLA leave is entitled to return to the “same or equivalent” position with equivalent pay, benefits and working conditions at the conclusion of the leave.” 29 C.F.R. § 825.100(c). While this can obviously create havoc with an employer’s internal structure, hiring practices, and division of job duties, it is clear that “[a]n employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.” 29 C.F.R. § 825.214(a) (emphasis added). “Equivalent position” means “one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions . . . [and] must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a).
There is one notable exception to an employer’s duty to reinstate an employee after FMLA leave: “an employer may deny job restoration to salaried eligible employees (‘key employees’ . . .) if such denial is necessary to prevent substantial and grievous economic injury to the operation of the employer . . .” 29 C.F.R. § 825.216(c). Very few employees fit the “key employee” description contained in 29 C.F.R. § 825.217. To be a “key employee,” the employee must be salaried and, more importantly, among the highest paid 10% of all employees employed by the employer within 75 miles of the worksite. 29 C.F.R. § 825.217(a).
At the end of the leave, “if the employee is unable to perform an essential function of the position because of a physical or mental condition . . . the employee has no right to restoration to another position under the FMLA. However, the employer’s obligations may be governed by the Americans with Disabilities Act.” 29 C.F.R. § 825.214(b).
Can an employee who is on FMLA leave be terminated/laid-off, or do I have to wait until they return from their leave?
An employee is not protected from termination, lay-offs, etc. while on FMLA leave. “An employee has no greater rights to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA period.” 29 C.F.R. § 825.216(a). The burden is on the employer to demonstrate that the employee would have been laid-off/terminated regardless of being on leave. Id. “If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer’s responsibility to continue FMLA leave, maintain group health benefit plans and restore the employee cease[s] at the time the employee is laid off,” assuming there is no collective bargaining agreement to the contrary in place. 29 C.F.R. § 825.216(a)(1).
Contact Julie Trent at jtrent@bsblaywers.com
