By David A. Campbell, Allen S. Kinzer and P. Jason Dejelo
Recognizing a need to balance the demands of the workplace with the needs of families, Congress enacted the Family and Medical Leave Act of 1993 (FMLA).
The FMLA gives employers some flexibility to control leave and prevent abuse. However, FMLA also holds employers responsible for educating employees about their rights, and many provisions will not apply unless the employer makes them part of a written policy and includes them in the employee handbook.
Therefore, the first rule should always be: Put it in writing, and include it in the handbook.
The following are a few other ways employers can control leave, prevent abuse and help their employees understand FMLA eligibility requirements.
Leave restrictions
- The calendar year
- Any fixed 12-month period that serves as the leave year
- The 12-month period measured forward from the date the employee’s first leave begins
- A rolling 12-month period measured backward from the date the employee uses any FMLA leave
If an employer fails to designate one of these four options, an employee who requests leave is entitled to the option that provides him or her with the most beneficial outcome.
Employers may prohibit or permit FMLA leave to be taken intermittently, if the reason for the leave is the birth or placement of a child for adoption or foster care. Employers should make this decision part of their written FMLA policy.
FMLA regulations permit employers to require that paid vacation, personal leave or family leave be used concurrently with any FMLA unpaid leave and to count the paid leave against the employee’s 12-week FMLA entitlement. Employers may also require that paid sick or medical leave be used concurrently with unpaid FMLA leave.
Medical issues
Employers may require employees who request FMLA leave because of their own or a family member’s serious health condition to provide a doctor’s certification that the leave is medically necessary. The employer should explain in writing both the policy and the consequences of violating it.
Before permitting employees to return after a serious health condition, an employer may require employees to provide a doctor’s certificate stating they are able to resume work. Employers may only institute this requirement if it is uniformly enforced for all health-related absences.
Under the FMLA, the employer must maintain the employee’s health care coverage on the same conditions as if the employee had not taken leave. If a plan requires an employee to pay part of the premium costs, then the employer must explain in writing how the employee should pay his or her share while on leave.
Restoration rights for key employees
While FMLA allows most employees on leave to return to the same or an equivalent job, an employer may deny that option to certain highly paid employees if restoration would cause substantial and grievous injury to the employer’s operations.
FMLA requires employers both to notify employees of their rights to restoration and the conditions under which restoration may be denied.
As with many employment laws, the FMLA’s details are often complicated and confusing. Maintaining a clear FMLA policy — and including it in the employee handbook — are the first steps to avoiding some common mistakes in administering the FMLA.
David A. Campbell is a partner in the Cleveland office of Vorys, Sater, Seymour and Pease LLP, while Allen S. Kinzer is a partner in the firm’s Columbus office. P. Jason Dejelo is an associate in the Columbus Office. Celebrating 96 years in 2005, the law firm has Ohio offices in Cleveland, Columbus, Cincinnati and Akron, as well as in Washington, DC and Alexandria, VA. For more information about the firm, visit www.vssp.com.
