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Proper Designation of Leaves for FMLA Q&A

22 October 2010

If an employee is eligible for FMLA coverage, you should place that person on FMLA leave.  If you do not, she may not receive all of her rights and benefits under the law, and you cannot count her leave time against her 12-week entitlement.

Q:         We have an employee who has been out of work for four weeks for a medical condition (supported by a doctor’s note) and is now asking for another two weeks of sick leave.  It is getting tough to find other employees to cover her shifts.  She has not requested FMLA leave. Do we have to give her the additional leave?

A:         If your organization is covered by the Family and Medical  Leave Act (FMLA) and the employee is eligible for FMLA leave, she is entitled to take up to 12 weeks of job-protected leave, assuming her medical condition meets the FMLA’s serious health condition definition.

As a general rule, an employer is covered by the FMLA if it has 50 or more employees in 20 or more workweeks.  An employee is then eligible if she:  (1) has worked for the employer for at least 12 months (not necessarily consecutively); (2) has worked for the employer for at least 1,250 hours in the previous 12 months; and (3) works at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of employer worksites that taken together have a total of 50 or more employees.  The employee also must have a serious health condition, defined broadly to include any “illness, injury, impairment, or physical or mental condition that involves” either inpatient care or “continuing treatment” by a “health care provider.”

(Download free FMLA Decision-Making Checklist.)

You should be aware that the employee does not have to request FMLA leave specifically.  She only has to provide sufficient information so that you can identify that the employee has a covered medical condition.  You are then obligated to determine whether the leave qualifies as FMLA leave and to then comply with the FMLA’s various notice requirements.  These notices include:

1.         Eligibility notice combined with an explanation of the employee’s rights and duties.  Once an employee requests FMLA leave, or as in this case, you have knowledge that an employee’s leave may be for an FMLA-qualifying reason, you must notify the employee within five business days, either orally or in writing, whether she is eligible to take FMLA leave.  The eligibility notice should state whether the employee is eligible for FMLA leave, and if not eligible, provide at least one reason why the employee is not eligible.  This notice also should explain the employee’s rights and responsibilities (such as the right to continued health insurance and any requirement that she provide medical certification) during FMLA leave and what will happen if she does not comply with these obligations.  The Department of Labor (DOL) has provided a sample notice that satisfies these requirements, WH-381, available online at www.dol.gov/whd/forms/WH-381.pdf.

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2.         Employer designation of leave as FMLA leave.  You also are required to designate leave as FMLA-qualifying within five days of receiving medical certification or other information necessary to determine that the leave is FMLA-qualifying, absent extenuating circumstances.  The designation should include any fitness-for-duty certification requirement for reinstatement (including a list of essential job functions if the employee must certify she can perform the essential job functions before returning) and whether you are requiring the employee to substitute paid leave for the otherwise unpaid FMLA leave.  The DOL also has provided a sample notice that satisfies these requirements, WH-382, available online at www.dol.gov/whd/forms/WH-382.pdf.

You can require the employee to provide medical certification to show that she has a serious health condition.  As a practical point, if she is unable to work because of her medical condition, she most likely will meet the serious health condition criteria.  (The DOL provides a sample medical certification form you can use, too, WH-380-F, available online at www.dol.gov/whd/forms/WH-380-E.pdf.)

Be aware, too, that you may be able to designate retroactively the time the employee has already taken for her medical condition as FMLA leave if you notify the employee of her FMLA rights as required by the FMLA.  This retroactive designation is appropriate as long as the employee does not suffer any actual harm because you did not initially designate the leave as FMLA-qualifying.  So, for example, if the employee maintained her health insurance as though she were actively employed during her sick leave (as required by the FMLA) and did not suffer any adverse action because of her absences, then it is likely that you can designate the time off as FMLA time and count it against her 12-week entitlement.

(Note that this retroactive designation is a relatively new right for employers, thanks to changes made to the FMLA regulations that took effect in January 2009.  Under the old FMLA regulations, if you did not properly notify an employee that her leave was covered by the FMLA, you could not count that absence toward the annual 12 weeks of FMLA leave.  You could only count any future leave as FMLA leave.)

If the employee is not covered under the FMLA, you still may have an obligation to provide her with leave if her medical condition is considered a disability under the Americans with Disabilities Act (ADA).  The ADA requires employers with 15 or more employees to provide accommodations to qualified disabled employees so as to allow them to perform the essential functions of the job.  A leave to seek treatment may be considered an accommodation.  A person with a physical or mental impairment that substantially limits a major life activity, such as walking, seeing, hearing, speaking, or breathing, is “disabled” under the ADA.  As under the FMLA, you can require the employee to provide medical certification of her disability and of the need for leave as an accommodation.

(Download free Serious Diseases model policy including ADA information, HR best practices, and legal background.)

If the employee is not covered under the ADA or FMLA, you should then treat her according to your normal leave and absenteeism policies.

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