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Introduction

The Family and Medical Leave Act (FMLA) is a law with an undeniably noble purpose: to help employees balance the demands of work with personal and family health needs. Since the FMLA was enacted in 1993, millions of employees have relied on it to protect their jobs while taking time off to recover from a serious illness, care for an ailing family member, or bond with a new child.

Surveys conducted by the Department of Labor (DOL), the federal agency that administers and enforces the law, show that the majority of companies covered by the FMLA find it very or somewhat easy to administer and that it has had little or no impact on company productivity, profitability, or growth. But managers and human resources professionals know that there's another side to this story. Experience has shown that it can be difficult to apply the FMLA when real employees take leave in the real world. For example, do you know what to do in these situations?

• An employee who needs leave is also covered by workers' compensation, a state family and medical leave law, and/or the Americans With Disabilities Act -- and the requirements of those laws appear to conflict with the FMLA.


• An employee asks for time off but won't tell you why or is reluctant to reveal personal medical information that might entitle the employee to leave.


• An employee wants to take FMLA leave at your company's busiest time of year.


• An employee wants to take time off as needed for a chronic ailment, rather than all at once, and can't comply with your company's usual call-in procedures.


• An employee doesn't give exactly the right amount or type of notice,forgets to hand in a medical certification form, or can't return to work as scheduled.


• An employee decides, after taking FMLA leave, not to come back to work.

As this book goes to press, the Department of Labor (DOL) is considering whether to
revise its regulations interpreting the FMLA. These regulations provide many of the
guidelines for employers to follow when applying the FMLA in the real world, addressing
some of the details not addressed in the law itself. In December 2006, the DOL
asked the public to comment on a number of key provisions. The DOL is currently
considering these comments and may decide to revise the FMLA regulations -- which
would change the rules you have to follow in applying the FMLA.

Some of the subjects that are up for discussion include:

• the definition of a "serious health condition" entitling an employee to FMLA
  leave, particularly whether the regulations should require a longer absence before
  the FMLA kicks in


• rules for using intermittent leave, including whether employees should be required to take more time off at once (for example, a full or half day) than the current regulations require


• medical certifications and fitness-for-duty reports (documents employers can require employees to submit to prove they qualify for FMLA leave) including whether changes are needed to comply with the Health Insurance Portability and Accountability Act (HIPAA) and whether employers should be entitled to more information than the current regulations allow


• employee notice requirements, including whether and in what circumstances employees must comply with an employer's usual requirements for using sick or vacation leave, and


• employer notice requirements, particularly what happens when an employer fails to designate leave as FMLA leave. We know there will be changes here, because the United States Supreme Court already struck down the existing regulation in Ragsdale v. Wolverine World Wide Inc., 535 U.S. 81 (2002) (see Chapter 7).

If and when the regulations change, some of the information in this book -- which relies on the regulations currently in effect -- might become outdated. To get the latest information on the regulations, register your purchase according to the instructions at the back of the book, and we'll send you an email notifying you of any changes. You can also check Nolo's website at www.

olo.com for the latest information.

These issues -- and many more like them -- come up every day, and managers have to figure out how to handle them legally and fairly, while protecting the company's interests. That's where this book comes in: It explains, in plain English, exactly how the FMLA works and what it requires. Although it can be tricky sometimes to figure out what to do in a particular situation, this book's step-by-step approach will help you sort things out and meet your obligations.

This chapter will help you get started. It introduces the law's basic requirements, with special emphasis on your responsibilities as a manager. It explains how other laws and company policies can affect your obligations when an employee needs time off for family or medical reasons. And it provides a roadmap to the rest of the book, so you'll be able to easily find the answers to all your FMLA questions.

In a nutshell, the FMLA requires companies to allow employees to take time off to fulfill certain caretaking responsibilities or to recuperate from a serious illness. If your company is covered by the law, an eligible employee is entitled to take up to 12 weeks of unpaid leave every 12 months to bond with a new child, care for a family member with a serious health condition, or recover from his or her own serious health condition.

FMLA leave is unpaid, although an employee may choose -- or the company may require employees -- to use up accrued paid leave, such as sick leave or vacation, during this time off. The employer must continue the employee's group health coverage during FMLA leave. When the employee's leave is over, the employee must be reinstated to the same or an equivalent position, with the same benefits, as the employee had before taking time off. Although there are a few exceptions to this requirement, they apply only in very limited circumstances.

Special rules apply to public employers and schools. The FMLA imposes slightly different obligations on government employers and schools; we don't cover these rules in this book. Similarly, in unionized workplaces, the collective bargaining agreement -- the contract between the company and the union -- might impose different family and medical leave obligations. Because every collective bargaining agreement is different, we can't cover them here.

The moment an employee comes to your office and says, "My wife is having a baby," "My mother has to have surgery," or "I've been diagnosed with cancer," you'll have to figure out whether the FMLA applies, provide notices and meet other paperwork requirements, manage the employee's time off, and reinstate the employee according to strict rules and guidelines.

Whenever you're faced with a leave situation that might be covered by the FMLA, you should ask yourself the questions listed below. This checklist will help you make sure that you meet all your legal obligations and don't forget anything important. Each of these topics is covered in detail in this book.

Step 1: Is your company covered by the FMLA? It is if it has had at least 50 employees for at least 20 weeks in this or the previous year. If your company is covered, it has to post a notice and perhaps adopt a written FMLA policy, even before an employee requests leave. Company coverage is explained in Chapter 2.

Step 2: Is the employee covered by the FMLA? An employee who has worked for at least a year, and at least 1,250 hours during the prior year, at a company facility that has at least 75 employees within a 50, is covered. Chapter 3 explains how to make these calculations.

Step 3: Does the employee need leave for a reason covered by the FMLA? Leave is available for the employee's own serious health condition or to care for a family member with a serious health condition. Chapter 4 explains what a serious health condition is. Leave is also available to bond with a new child; that's covered in Chapter 5.

Step 4: How much leave is available to the employee? An employee is entitled to take up to 12 workweeks of leave, either all at once or intermittently, in a 12. Chapter 6 will help you figure out how much leave an employee may take.

Step 5: Did you and the employee meet your notice and paperwork requirements? The employee must give reasonable notice and provide certain information; you must designate FMLA leave and give the employee required notices, among other things. Chapter 7 provides the details.

Step 6: Did you request a medical certification -- and did the employee return it? You can -- and should -- ask an employee who needs leave for a serious health condition to provide a medical certification from a health care provider. Chapter 8 explains how.

Step 7: Did you successfully manage the employee's leave? You must continue the employee's health benefits, manage and track intermittent leave, arrange for substitution of paid leave, and more. In addition, you have to make sure the work gets done while the employee is out, whether by distributing the employee's responsibilities to coworkers, hiring a temporary replacement, or outsourcing the job. Chapter 9 covers all of these issues.

Step 8: Did you follow the rules for reinstating an employee returning from leave? You must return the employee to the same or an equivalent position and restore the employee's seniority and benefits, unless an exception applies. Chapter 10 explains these rules, as well as what to do if the employee doesn't return from leave.

Step 9: Have you met your obligations under any other laws that apply? Whether or not the FMLA applies, the employee may be protected by the Americans With Disabilities Act, workers' compensation statutes, state family and medical leave laws, and other laws. To find out about your obligations under these other laws, see Chapter 11.

Step 10: Have you met your record keeping requirements? If your company is covered by the FMLA, you must keep certain payroll, benefits, leave, and other records, and you'll certainly want to keep proper documentation of your decisions and conversations, in case you need to rely on them later. These issues are covered in Chapter 12.

One of the challenges of implementing the FMLA is that you must meet your legal obligations within a context that can be emotional. After all, employees who qualify for FMLA leave are undergoing major life changes. On the positive side, the employee may be welcoming a new child, with all the joy and excitement that brings. On the more sobering side, perhaps the employee is losing a parent or spouse to a terminal illness, caring for a seriously ill child, or suffering through a painful disease. Although you have to follow the law's requirements and make sure your company's needs are met, no one wants to be the hardhearted administrator who responds to
an emotionally distraught employee by handing over a stack of forms to be completed in triplicate.

The FMLA recognizes that employees who need time off for pressing family or health concerns might not always be able to dot every "i" and cross every "t." The law provides guidance on what to do if, for example, an employee is too ill or injured to communicate with you, can't return to work on time because of continuing health problems, or doesn't complete forms on time. These rules will help you balance your legal obligations with the natural human desire to be compassionate during a difficult time.

And, as we'll remind you from time to time, you have little to gain from imposing strict deadlines and paperwork requirements on employees who are truly in dire straits. Judges and juries are people, too, and they can find ways to enforce the spirit of the law in favor of an employee who needed its protection -- even if the employee failed to meet deadlines, give adequate notice, hand in forms on time, or provide required information.