Avoiding Family and Medical Leave Act Pitfalls
by Jamie L. Johnson
Although it has been several years since its passage, many employers are still coming to terms with the problem of managing their workforce properly in light of the requirements of the Family Medical Leave Act (“FMLA”). The FMLA contains a detailed regimen for providing notice to employees of how your leave policy works, designating specific leaves as FMLA leaves, and coping with requests for specialized schedules or intermittent leaves to accommodate needs for child care or medical treatment. Employers who take the time to address a few basic problems which frequently arise under the FMLA will be in far better shape to manage their workforce and comply with the FMLA. Below are some fundamental issues which are sometimes mishandled by employers, giving rise to increased FMLA burdens.
Choose the proper method of calculating leave years
The FMLA permits an employer to comply with the Act’s requirement to provide up to 12 weeks of leave per year in a number of ways. Leave entitlements can be calculated on a calendar year basis, on the basis of a fixed twelve month leave year, or by measuring forwards or backwards from the point at which an employee seeks FMLA leave.
Employers should opt for the “measured backwards” method, which looks at the FMLA leave taken in the preceding 12 months for purposes of determining the remaining entitlement. Other methods, such as a calendar year leave entitlement, can permit the “stacking” of 12 week leave entitlements and require an employer to grant up to 24 weeks of continuous leave. Where an employer has failed to designate its basis for calculating leave entitlements in advance, the regulations explicitly permit an employee to choose the method of calculating leave entitlements most favorable to him.
Be sure to properly designate leaves as FMLA leaves
Once an employer has adopted the appropriate method of designating leaves, it must be sure to comply the Act’s requirements to designate leaves as FMLA leaves in order to count such leaves against the 12 week entitlement. Frequently, employers may grant leaves for extended periods of time, only to find that leaves given do not count against the employees’ FMLA requirements because they failed to issue a proper designation, and that the employee is still entitled to yet another 12 weeks of leave.
When an employee requests leave he or she is entitled to under the FMLA, the employer is required to send the employee written notice that the leave will be counted against his or her FMLA leave entitlement, and reminding the employee of specific rights and obligations he or she has under the FMLA to receive health benefits or substitute paid leave, in addition to any requirements to furnish medical certification of the need for the leave (if it is a medical leave) or the ability to return. Such designations must be issued for each specific event which gives rise to the need for the leave; if for example, an employee breaks a leg and takes leave, but later injures a leg, a separate designation is required for each leave. Where an employee takes intermittent leave for a single serious health condition or other qualifying purpose, only a single designation is needed, but must be reissued every six months.
Comply with FMLA requirements for giving notice of FMLA rights
Every employer is required to post a notice explaining the Family Medical Leave Act’s provisions conspicuously on its premises. If the employer has a benefits booklet or employee handbook, it is required to incorporate information on FMLA rights and obligations. Where a “significant portion” employers workforce is not literate in English, the employer is required to provide guidance on FMLA rights in a language in which the employees are literate. Failure to comply with these requirements can result in a fine for “each separate offense,” but perhaps more significantly, serve to except employees from their obligation to provide advance notice and information to employer, and preclude an employer from denying leave or taking adverse action against the employee for failing to comply with the Act’s prerequisites.
Beware distinctions between the California’s leave act and the FMLA
Employers which operate in a multi-state environment should be aware that although California’s Family Rights Act (“CFRA”) is patterned on the FMLA, there are important differences in a number of areas. Most significantly, pregnancy disability is treated separately under California’s leave schemes, and a pregnant woman may be entitled to up to 4 months leave for pregnancy disability in addition to 12 weeks to care for the child. Also, the CFRA grants employees more latitude to take intermittent leaves for birth, adoption or foster placement of children.
Be sure to consult with legal counsel in adapting your leave policy to California law.
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Jamie L. Johnson is an attorney and Partner in the Los Angeles office of Brobeck, Phleger & Harrison LLP and specializes in the representation of employers in Labor and Employment matters.
