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Free Human Resource Information
| Medical
Leave Act in Need of Definition |
by Geoffrey Glaser
The essence of the Federal Family and
Medical Leave Act of 1993 requires certain employers to provide up to 12
weeks of job- protected leave per year to specified employees.
The act also requires employers to continue
providing group health benefits during the leave period and to restore
employees to the same or an equivalent position upon their timely return to
work.
As you can imagine, just about every word
in the previous sentences has been interpreted, misinterpreted, argued and
litigated and will continue to be so. I hear horror stories from both
employers and employees.
Employers tell me their employees expect
time off because of "family leave" but the reasons for which they
are requesting time off are not covered by the act. On the other hand, the
employees believe their employers do not administer the program correctly.
So, without going into a lengthy discussion of everything that could be said
about the act, let's just cover a few of the basics.
Employees are covered only if they
employer employs 50 or more employees. Not all employees are protected - only if they
have been employed for at least 12 months and have worked at least 1,250
hours during the 12-month period immediately preceding the commencement of
the leave.
The only qualifying events for leave are:
- For the birth of a child and/or care of
that newborn, or when a child is placed with the employee for adoption
or foster care. (Men or women are eligible.)
- For the care of a spouse, child or
parent with a serious health condition.
- For the employee's own serious health
condition which renders the employee unable to perform the functions of
the job. A serious health condition is an illness, injury, impairment or
physical or mental condition which requires either inpatient care (at
least an overnight stay), or continuing treatment by a health care
provider. Continuing treatment includes:
- A period of incapacity due to pregnancy.
- A period of incapacity of more than
three consecutive calendar days.
- A period of incapacity due to a chronic
serious health condition.
- A period of incapacity which is
permanent or long-term due to a condition for which treatment may not be
effective.
- A period of absence to receive multiple
treatments, such as in the case of chemotherapy, kidney dialysis or
physical therapy.
- An employee's serious health condition
is where a health care provider finds the employee unable to work at
all, or unable to perform one of the "essential functions"; of
the job (reference to the Americans with Disabilities Act).
Obviously, it is not easy to explain this
term. Nevertheless, it is not physical, eye or dental examinations; nor
activities which can be initiated without a visit to a health care provider
regarding the common cold, headaches, upset stomach, etc. It is not because
a child is sick and unable to attend school, or other so-called
"family" related matters.
An employer can require a written medical
certification for any leave related to illness. The employer may also
require a certification from a health care provider of the employee's
ability to return to work, i.e., a fitness-for-duty release.
However, the government has placed very
specific and strident restrictions on the entire certification process which
employers must follow or forfeit their rights in this regard. See a human
resource consultant or employment attorney with respect to this specific
issue.
Informing employees about policy is a very
important issue because the employer's rights depend on their advising
employees of their obligations.
Covered employers are required to post the
Department of Labor's notice. If an employer has any written guidance to
employees concerning employee benefits or leaves of absence such as an
employee handbook, information concerning the act and employee obligations
must be included in the handbook or other documents.
If an employer does not have written
policies or an employee handbook, it must still provide written guidance
concerning rights and obligations under the act whenever an employee
requests a leave or such information.
An employee must provide at least 30 days
advance notice before leave is to begin. If 30 days notice is not possible,
due to an emergency, notice must be given as soon as possible.
The above is only the tip of the iceberg.
There are many issues not discussed here including
substitution of paid leave, employee payment of benefits and intermittent
leave.
The answers to the many remaining questions
are not easy, but they are easy to obtain. Employees need to see their human
resource department. Employers should phone their human resource consultant
or employment attorney for assistance.
Geoffrey Glaser is an HR attorney and
generalist with 25 years of experience and is a Human Resource Store
associate. You can access him through our legal hotline, which is included
in our package of Outsourced Human Resource Services, by calling us at
708-645-2530 24 hours daily.
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