What you need to Know about the Family Medical Leave Act

Jun 5, 2023 in Articles by

By: Andrew B. Brown, Esq.

Partner Andrew Brown, Esq. brings his next installment on leaves of absence in Legal Profession Public Schools.  In this section, he discusses FMLA.

The Family Medical Leave Act (FMLA)

    • A statutory entitlement up to twelve (12) weeks of unpaid leave during a twelve (12) month period.
    • FMLA leave may be taken (1) in order to care for a sick relative; (2) in order to care for a newborn or placement of an adopted child; or (3) due to an employee’s own disability.
    • Typically, after an employee has made the need for FMLA leave known, a doctor’s certification should be filed, within fifteen (15) days of an employee’s leave request, which attests to a “serious health condition.”
    • Upon an employee’s return from FMLA leave, s/he must be returned to an “equivalent position.” Pay, benefits, and other terms/conditions of employment must be restored. See 29 C.F.R. §825.214.

FMLA: Employer Notice Obligations

As per guidance issued by the London Department of Labor, all covered employers must display a general notice about the FMLA (an FMLA poster). Additionally, covered employers who have employees who are eligible for FMLA leave must:

    • Provide employees with general notice about the FMLA;
    • Notify employees concerning their eligibility status and rights and responsibilities under the FMLA; and
    • Notify employees whether specific leave is designated as FMLA leave and the amount of time that will count against their FMLA leave entitlement.

FMLA Employee Qualifications

In order to qualify for FMLA leave, an employee must:

  • Work 1250 hours with his/her employer. An employee meets his FMLA threshold of 1250 hours of service in accord with the FLSA definition of hours worked/service performed. 29 C.F.R. §825.110. The FLSA, however, does not actually define hours worked. According to the FLSA Fact Sheet 22, however, the employee’s hours worked is the time he is “on duty” or performing for the employer (as opposed to simply being listed on the payroll).
  • Teaching staff members are typically presumed to meet this time threshold.

FMLA: Qualifying Reasons for Leave

    • Care for a newborn/newly adopted child.
    • Employee’s own serious health condition.
    • To care for a family member with a serious health condition.
    • “Serious Health Condition” = an “Illness, injury, impairment, or physical or mental condition that involves inpatient care…” OR one which requires “continuing treatment by a health care provider.” 29 C.F.R. §825.113.
    • “Continued Care” means the person is either (1) incapacitated for three or more days; (2) has been seen by a treating physician two (2) or more times in the first thirty (30) days of the illness; or (3) has been seen at least once by a treating physician with a treatment regimen prescribed. Treatment does not generally include self-help remedies such as over the counter medications and routine examinations.
    • Qualifying Family Member = Spouse parent (not in-laws), child (and sometimes children over the age of 18), service member’s next of kin (“nearest blood relative other than the covered service member’s spouse, parent, son, or daughter…)” 29 C.F.R. §825.122.

FMLA: Employee Obligations

    • Notice to Employer of the Need for Leave:
    • Foreseeable leaves: 30 days notice. 29 C.F.R. §825.302
    • Unforeseeable leaves: As soon as possible. Unforeseeable FMLA leave requests may be made by the employee’s representative (i.e. spouse or responsible family member) when the employee cannot make his own request 29 C.F.R. §825.303

Example: If an employee’s child has a severe asthma attack and the employee takes the child to the emergency room, the employee would not be required to leave his or her child in order to report the absence while the child is receiving emergency treatment. However, if the child’ asthma attack required only the use of an inhaler at home followed by a period of rest, the employee would be expected to call the employer promptly after ensuring the child has used the inhaler.

FMLA: Physician’s Certification

    • A certification is made by the employee’s physician attesting to the employee’s inability to perform one or more of the essential functions of the job. 29 C.F.R. §825.305.
    • The employer must request a certification within five (5) days of the employee’s request. The employee then has fifteen (15) days to return it to the employer. Id.
    • Failure to obtain/produce certification may result in the loss of protected FMLA status of the leave. Id.
    • The employer must advise the employee that failure to return the certification may result in loss of FMLA status.

FMLA: Employee’s Rights While on Leave

    • Paid status? Maybe. This depends on what the employer’s policy is.
    • Remember, N.J.S.A. 18A:30-2 requires payment for sick days for the individual’s own injury. Employees taking FMLA leave for their own incapacity may use the sick days. They may NOT use the sick days to care for another.
    • Health Benefits? Coverage remains in place for the duration of the leave.
    • Right of reinstatement?
    • Special rules exist for school employees, which require the Board to advise the employee in writing of the policies and the collective bargaining practices, which are implemented to determine the “equivalent position” to which s/he may be returned. 29 C.F.R. §835.604
    • Can require that the employee remain on leave until there is a break in the year (i.e. the end of a marking period.)
    • RIF’s? “An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.” 29 C.F.R. §825.216(a).

FMLA: Reduced Leave and Intermittent Leave

  •  “Using an increment no greater than the shortest period of time that the employer uses to account for the use of other forms of leave…” 29 C.F.R. §825.205(a).
  • “Only the amount of leave actually taken may be counted toward the employee’s leave entitlement.” 29 C.F.R. §825.205(b).

FMLA: Reduced Leave and Intermittent Leave for Instructional Staff

For Instructional Staff, the law also provides the following:

  • “Leave taken for a period that ends with the school year and begins the next semester is leave taken consecutively rather than intermittently.” 29 C.F.R. §825.601(a).
  • Additionally, if an eligible instructional employee needs intermittent leave or leave on a reduced leave schedule, and the employee would be on leave for more than 20 percent (20)%) of the total number of working days over the period the leave would extend, the employer may require the employee to choose either:
  • To take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or
  • Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring periods of leave than does the employee’s regular position. 29 C.F.R. §825.601(a).
  • These rules apply only to a leave involving more than 20 percent of the working days during the period over which the leave extends.
  • Example: If an instructional employee who normally works five days each week needs to take two days of FMLA leave per week over a period of several weeks, the special rules would apply. 29 C.F.R. §825.601(a).

FMLA: Special Rules for School Employees

  • Leave on or near the end of an academic term. 20 C.F.R. §825.602:
  • “The fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA Leave. However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday. Similarly, if for some reason the employee’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks(e.g. a school closing two weeks for Christmas/New Year holiday or the summer Vacation or an employer closing the plant for retooling or repairs), the days the employee’s activities have ceased do not count against the employee’s FMLA leave entitlement.”

FMLA: Seniority

Under the law, seniority may accrue, but the employer is not required to count this time for seniority.

  • Seniority does not accrue during unpaid leaves of absence that last more than 30 days. N.J.A.C. 6A:32-5.1(b).
  • While being paid, seniority is accrued. But once the employee is on an unpaid leave, the leave does not count towards seniority, even though the individual is still an employee. Id.

Andrew Brown, Esq. specialized is labor, personnel and negotiations for Legal Profession Public Schools.  For more information on Andy, or his upcoming speaking engagements, please contact him.

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