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April 06, 2009
Employers Seek Clarity on Revised FMLA
Managing employee requests for time off under the Family and Medical Leave Act (FMLA) is one of the most time-consuming areas an HR professional has to tackle. And, since the law itself, which was complex to begin with, has just been revised, our legal experts are receiving many more questions than usual. Partly, subscribers want to be sure that the way they understood provisions before the changes is still valid. Here’s a selection of recent questions:

Q. The law defines a health condition as serious if the employee is treated by a healthcare provider for more than 3 consecutive, full calendar days. Is that what it really means? So an employee could see a provider on a Friday and the following Monday and still qualify? I would have hoped it would be work days.

A.No, it’s not work days. Saturday and Sunday are included for the purpose of defining a serious health condition.

Q. Regarding the definition of a key employee for FMLA, must the person be paid a salary? What if a top 10 percent earner is paid on a commission basis or with hourly wages? Can he not qualify as a key employee of the business?

A. No, he can’t. Not only must key employees be salaried but also be among the 10 highest-paid employees within a 75-mile radius that work for the company. And, such key employees must be informed of their status. Remember that you may still grant leave to key employees; the distinction is that you would not guarantee reinstatement to their former jobs on their return from leave.

Q. We have an employee who has been out for 8 weeks because of pregnancy complications, and her baby has still not been born. When it is delivered, must we give the mother an additional 12 weeks’ leave for care of a newborn? In other words, do the complications and the childbirth each qualify for 12 weeks’ leave?

A. Both FMLA and the Pregnancy Discrimination Act (PDA) have implications in this situation. First, under FMLA, the employee is allowed only 12 weeks’ leave in a 12-month period for any combination of conditions, such as the two separate needs of your employee. Leave to care for a child can be taken by either men or women, must be within 12 months of the child’s birth or adoption, and does not require medical certification. Guidelines from the Equal Employment Opportunity Commission regarding the PDA include provisions that an employer must allow a new mother to return to work as soon as she wishes after childbirth and that she is entitled to accrue seniority or vacation time on the same basis as other employees on medical leave.

Q. We know that an employee must work 1,250 hours in the previous 12 months to be eligible for FMLA leave. We have an employee who works 3 days a week. With occasional overtime, she totals 1,250 hours for the 12 months—but only if we count paid time off, such as vacation, sick leave, and holidays. Can we do that?

A.No, you can’t. Paid time off doesn’t count as time actually worked, so they can’t be included in determining whether an employee qualifies. Only someone returning from National Guard or military reserve duty should be credited for the hours he or she would have worked had it not been for the period of military service. subscribers can access all of our archived “Ask the Expert” questions here.

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