We all know that managing leaves of absence can be confusing and frustrating. It is essential for an organization to understand various types of leaves and any state and federal requirements that apply to your organization.
Here at HR Services, the Hotline routinely handles questions and concerns from 501(c) Agencies Trust members that have difficulty managing FMLA and protected state leaves. In fact, from a recent survey, Trust members considered this one of their most challenging HR issues.
Here, we will address a few frequent questions we have received over the past year from members across the country.
Can an employer force an employee to use FMLA?
An employer should designate FMLA and not leave it to the employee to make that decision. However, there are some restrictions that you need to be aware of when designating FMLA:
- If the employee can work intermittently, the employer cannot mandate that the leave is taken in a block of time, regardless of whether that time is paid or unpaid.
- The employer cannot mandate that the leave begin sooner than the employee’s health care provider specified, nor extend beyond the provider’s release to return to work.
- The employer cannot mandate that the employee use FMLA for multiple consecutive days of sick leave unless it qualifies as a “serious health condition.”
When can an employee take intermittent or reduced-schedule leave?
Assuming the employee qualifies for leave, an employee may take intermittent or reduced-schedule leave if it’s medically necessary for a serious health condition (the employee’s own or that of a family member). Employees may take military caregiver leave on an intermittent or reduced schedule if it’s medically necessary. Employees may also take intermittent or reduced-schedule leave to handle qualifying exigencies arising from a family member’s call to active duty.
Do I need to provide job reinstatement?
Once an employee’s FMLA-protected leave runs out, the organization must reinstate the employee to the same or an equivalent position at the same rate of pay, hours and location. If the employee is not able to return to work or perform the essential duties of his or her position, the organization’s FMLA obligations end. However, if the employee is also covered by the ADA, the organization must provide a reasonable accommodation, unless it creates an undue hardship.
How do I know if I should offer FMLA?
Private employers are required to comply with the FMLA only if they have 50 or more employees. For employers that are near the 50-employee mark, figuring out whether you must abide by the FMLA is not always as easy. In determining whether you have 50 employees, here are some tips:
- Even if you currently employ fewer than 50 employees, you will be required to comply with the FMLA if you employed 50 or more employees on each working day of 20 or more workweeks during the current or last calendar year. The workweeks do not have to be consecutive.
- Once you have met the requirements of a covered employer, you will continue to be covered until you have reached a point where you have fallen below the 50-employee/20-week limit for at least one calendar year.
- In counting employees, you must include anyone whose name appeared on your payroll, even if they were part-time, did not work every day of the week, or received no compensation for the week. You do not have to count any employee who begins to work for you after the workweek starts or terminates their employment before it ends.
- You may also be required to count employees you have incorrectly identified as independent contractors.
- You must generally count employees who are on paid or unpaid leave, including FMLA leave, if you reasonably expect that they will return to active employment. This does not include employees who have been laid off.
- You do not need to count employees who work outside of the United States or any territory or possession of the United States.
- You do have to count joint employees such as temporary works you hire through an employment agency.
If you are not an employer with 50 or more employees to be eligible under FMLA, it’s a good idea to have a medical leave of absence policy in place that provides guidelines to your employees that may experience a serious illness or disability. Be advised that many states (CA for example) are updating and expanding their current state leaves and many states are adopting their own protected leaves.
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