This article will answer the following questions:
What is the Family and Medical Leave Act?
What kinds of conditions or circumstances are covered under the FLMA?
What are my rights and responsibilities as an employer under the FMLA?
How long must my employer hold my job if I must take a leave of absence under the FMLA?
Will I be able to keep the same job I had before I left?
Do I get to keep my health insurance benefits while on leave?
What kind of information do I need to provide if I need to take a leave of absence under the FMLA?
Will my employer have access to my private health records?
What can I do if I believe my employer or employee has violated the FMLA?
Under the FMLA, what are my rights as an employer?
If you have further questions or would like to speak to a legal professional, please feel free to contact us. Davidson Law Firm has a great deal of experience in working with both businesses and employees in Arkansas. We are here to help.
The Family and Medical Leave Act or FMLA allows certain eligible employees up to twelve work weeks of unpaid leave in a twelve-month period. During this time, the employer is required to maintain the employee's group health benefits as if the employee continued to work and the employee is entitled to return to the same or equivalent job at the end of the FMLA leave. An employee is considered eligible to take leave under FMLA if she has worked for a covered employer for at least 1,250 hours during the twelve months prior to the start of the leave, she works at a location where the employer has fifty or more employees within 75 miles, and has been with the company for at least 12 months.
An eligible employee may use FMLA in the following situations:
- Birth and bonding with a newborn or placement of a child for adoption or foster care.
- To care for an immediate family member with a serious health condition.
- To take medical leave when the employee is unable to work due to a serious health condition.
- Qualifying exigencies arising out of the employee’s immediate family member's active duty in the military.
The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that includes:
- Inpatient care requiring an overnight stay at the hospital, hospice, or residential medical care facility.
- A period of incapacity of more than three consecutive full calendar days with subsequent treatment or period of incapacity related to the same condition.
- A period of incapacity due to pregnancy and/or prenatal care.
- Chronic conditions requiring any period of incapacity or treatment and which requires treatment by a health care provider at least two times per year.
- A permanent or long-term period of incapacity due to a condition for which treatment may not be effective. (Examples include Alzheimer’s, severe stroke, and the terminal stages of a disease.)
- Any period of absence to receive multiple treatments for restorative surgery after an accident or a condition that, in the absence of treatment, would likely result in a period of incapacity of more than three consecutive full calendar days. (Examples include chemotherapy, physical therapy, and dialysis.)
Employers are prohibited by the FMLA from interfering with, restraining, or denying the employee’s rights guaranteed by the FMLA. Additionally, employers may not retaliate against an employee for using FMLA leave or from considering that leave as a negative factor in when making decisions concerning hiring, promotions, or disciplinary actions. If the employer violates these rights, the FMLA allows them to file a complaint with the Secretary of Labor. They may also choose to file a private lawsuit against the employer within two years for violations. If the employee successfully proves the employer has violated the FMLA, the employer may receive wages, employment benefits, other compensation denied or lost as a result of the violation, as well as attorney’s fees and costs of the action.
Employer Challenges to FMLA
Unfortunately, the vague nature of the Act does not allow the employer with the ability to protect itself from abuses of the FMLA. Moreover, employers usually do not succeed in defending their actions against an employee for alleged FMLA violations.
Due to the constraints placed on the employer under the FMLA, the employer’s only real ability to challenge an employee’s request for leave is to challenge the employee’s eligibility under the Act. The employer may require the employee to submit a certification from a health care provider to support the employee’s claim in cases except those that involve requests for leave to care for a newborn child or adoption.
When the employee requests leave under the FMLA, the employer must provide the employee a written notice of FMLA rights and responsibilities. This notice must notify the employee that certification is required. The employee then has 15 calendar days to provide the certification to the employer. The certification must be both complete and sufficient. A certification is incomplete if one or more of the applicable form entries are not completed. A certification is considered insufficient if the information is vague, unclear, or nonresponsive. The Department of Labor has approved a certification form that can be used. Although is not required, employers are encouraged to use this approved form as the employer is not entitled to all of the employee’s medical information and they may find itself in violation of the Act by requesting more information than that to which it is entitled.
If the employer determines that certification is incomplete or insufficient, the employer must provide notice to the employee that includes what additional information is necessary and allow them a reasonable opportunity to cure any deficiency. In most cases, the employee must be given at least seven calendar days unless seven days is not practical under the particular circumstances despite the employee’s diligent, good faith efforts to do so. The employee’s direct supervisor may not contact the health care provider under any circumstances, even if only to request additional information. However, a human resource professional may contact the health care provider to authenticate or clarify the certification. If the employee does not provide a certification or fails to cure any deficiencies after given the opportunity to do so, the employer may deny the FMLA leave request. The employer can also require a second or third medical opinion if it has reason to doubt the validity of the medical certification. The employer is responsible for the costs of the second and third evaluations as well as reasonable travel expenses.
The employer may choose the second health provider, but may not select one it employs on a regular basis. If the second certification differs from the first, the employer can then require the employee to obtain a third certification, which is to be chosen by both the employee and employer. The opinion of the third health care provider is the final determination and must be used by the employer. The employee is entitled to FMLA leave while waiting on the second or third certifications.
Under some circumstances, an employer may request recertification of the employee’s serious health condition. If the certification states a minimum duration of more than 30 days, that time period must expire before the employer can request a recertification. Generally, the employer is allowed to request a recertification every 6 months, but they must allow at least 15 calendar days for the employee to provide such information. The employee is responsible for the cost of the recertification and the employer cannot require a second or third opinion at this point.