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Common FMLA Violations

Both the federal and California governments have enacted family-leave laws. They differ in scope and application. Employers must comply with the law that requires provision of the more-generous benefit. In general, however, the federal and state leaves can run concurrently, and employers can usually satisfy their obligation under both California and federal law with a single job-protected leave.

The federal Family and Medical Leave Act (FMLA) grants unpaid, job-protected leave to eligible employees for specified family or medical reasons. It also requires employers to provide continuation of group health insurance coverage under the same terms and conditions as if leave had not been taken.

FMLA leave is available to an employee who: works at a worksite where at least 50 employees are employed within 75 miles; was employed for 12 months (which need not be consecutive); and worked 1,250 hours in the 12 months before the start of the leave.

 Under the California Family Rights Act (CFRA), an employer regularly employing 50 or more employees in California must provide unpaid time off to employees for: (1) the birth of a child for purposes of bonding; (2) the placement of a child in the employee's family for adoption or foster care; (3) the serious health condition of the employee's child, parent or spouse; or (4) the employee's own serious health condition.

 Eligible employees may take up to 12 weeks of CFRA leave every 12 months. To be eligible for this leave, an employee must have been employed for at least 12 months and have worked at least 1,250 hours in the 12-month period before taking the leave. An employee taking CFRA leave generally must meet certain notice and certification requirements.

 CFRA leave need not be taken in consecutive days or weeks. An employer need not grant family leave to a parent to care for a child being cared for by the child's other parent.

 CFRA leave for the birth of a child may be taken in addition to pregnancy-disability leave. In other words, pregnancy-disability leave taken by an employee does not count against her entitlement to CFRA leave. This means that after taking up to four months of pregnancy-disability leave, an employee may take up to 12 weeks of CRFA leave.

 Once you determine that you are covered by the FMLA, you should be aware of common errors made by employers that can result in non-compliance.

Don't Count Time As Leave That Should Not Be Included

Employers may count time as FMLA leave only if the employee would have been working during that time. This can be an issue for seasonal employers.  For example, if an employee needs to take FMLA leave just before a seasonal layoff begins, the period of layoff would not count as FMLA leave.

Count FMLA At The Same Time As Workers' Compensation Leave

An employee who is injured or suffers an occupational disease in the course and scope of employment may be granted temporary total disability or other forms of workers' compensation leave. This type of injury is also likely to constitute a serious health condition under the FMLA. Therefore, you should ensure that FMLA leave runs concurrently with time taken as workers' compensation leave.

Continue Benefits While On Leave

Any benefits that would be maintained while the employee is on other forms of leave, including any form of paid leave, must be maintained while the employee is on FMLA leave. For example, healthcare coverage must be continued at the same level as before the leave.

If the employee is provided with group health insurance, the employee is entitled to the continuation of the group health insurance coverage during FMLA leave on the same terms as if she had continued to work. If family-member coverage is provided to an employee, family-member coverage must be maintained during the FMLA leave. The employee must continue to make any normal contributions to the cost of the health insurance premiums.

Return The Employee To The Same Job Or Equivalent Job

Upon return from FMLA leave, an employee must be restored to the same or equivalent job. The employee is not guaranteed placement in the job held before the leave. An equivalent job means one that is virtually identical to the original job in terms of pay, benefits and other employment terms and conditions (including shift and location). Failing to reinstate the employee to the same or equivalent position - even, for example making changes to a work area - may be considered retaliatory.

Designate FMLA Leave When It Should Be So Designated

If the employee provides information indicating a serious health condition, you need to decide whether the employee is entitled to FMLA leave even if the employee does not specifically request it. Employees do not need expressly to assert their rights under FMLA, or even mention FMLA, in order to receive the law's benefits.

The employee must, however, provide sufficient information to make you aware of the need for FMLA leave and the anticipated timing and duration of the leave. This can consider whether a condition renders the employee unable to perform the functions of the job. You should inquire further if it is necessary to have more information about whether FMLA leave is being sought.

Don't Ignore Possible ADA Accommodations

An employee who qualifies for FMLA leave for her own serious health condition may also qualify for an Americans with Disabilities Act accommodation, such as allowing her more leave or changing some aspect of the job that will enable her to perform her essential job duties.

Be sure to consider this before discharging an employee whose leave has been exhausted but who has not returned to work. Also, be sure to inform the employee when her FMLA leave has expired, as firing her without that notice could be considered retaliation for having taken FMLA leave.

Provide A Job Description With The FMLA Leave Designation Notice

You may have a policy or practice that requires employees in similar job positions who take leave for similar health conditions to provide from the employee's health-care provider a return-to-work or fitness-for-duty certification showing that the employee can resume work. You may request a fitness-for-duty certification only with regard to the particular health condition that caused the need for FMLA leave.

 If you require a fitness-for-duty certification, you must provide notice of that requirement and whether the certification must address the employee's ability to perform the essential functions of the job. As long as you have provided the required notice about any fitness-for-duty certification requirement, the employee's return to work may be delayed until the certification is provided.

If a fitness-for-duty certification is required to address the ability to perform essential job functions, a job description is often the best resource for a physician to review to be able to certify whether an employee is fit.

Avoid Retaliation by Discharging Or Taking Disciplinary Action

The FMLA protects employees who take FMLA leave. You may not use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions. While it may seem obvious, be cautious when disciplining employees who have returned from leave, and carefully document any performance issues to ensure that any negative employment action is not viewed as retaliation for the employee having taken FMLA leave.

Proper handling of FMLA leave requests will save you time and money and help you avoid litigation.