Make sure your clients are up to date regarding their family, medical and military leave policies

May 6, 2014

BankruptcyFederal laws and regulations relating to family and medical leaves, particularly the federal Family and Medical Leave Act (FMLA), have becoming particularly important for employers in recent years especially for those companies that have employees who requested leaves to care for close family members who have returned from military service.  The federal Department of Labor, which is responsible for enforcement of the FMLA, issued new regulations, a new poster and new model forms during 2013 and you should be sure that you remind clients of their FMLA obligations by sending them the Client Alert set out below and working with them  to develop and/or update various policies and forms including a general statement of employee rights under the FMLA (see Specialty Form at § 100:195), a description of family and medical leave rights to be included in their personnel handbook (see Specialty Form at § 100:197), and a separate description of rights relating to military leaves may also be prepared (see Specialty Form at § 100:196).



The federal Family and Medical Leave Act (FMLA) requires covered employers to provide eligible individuals with up to 12 workweeks of unpaid leave per year for the birth, adoption, or foster care placement of a child; or serious health conditions of employees or their children, spouse, or parents.  In addition, the FMLA includes two military family lead entitlements—the military caregiver leave and the qualifying exigency leave. Under the terms of the military caregiver leave eligible employees are entitled to take up to 26 weeks of job-protected leave in a 12-month period to care for a covered service member with a serious illness or injury incurred in the line of active duty. The qualifying exigency leave can be used by eligible family members to take up to 12 weeks of FMLA leave for “qualifying exigencies” arising out of a covered military member’s active duty status, or call to active duty, in support of a contingency operation. Under the FMLA regulations promulgated by the federal Department of Labor (DOL) the following events would qualify as “qualifying exigencies”: short-notice deployment (i.e., called to active duty seven or fewer days prior to the date of deployment); military events, ceremonies or programs related to active duty or related activities; childcare and school activities; financial or legal appointments; counseling; rest and recuperation; post-deployment activities (e.g., arrival ceremonies and reintegration briefings); and additional activities agreed upon by the employer and employee.

Covered employers must also give information to employees about their rights under the FMLA, post various notices including prescribed information, and include information about the FMLA in their personnel handbook.  They must also prepare records concerning basic payroll information required by wage and hour laws, dates FMLA leave is taken (or hours, if taken in increments of less than a day), copies of FMLA notices that they give to employees or that employees give to them, copies of written policies about benefits and the taking of leaves, premium payments of employee benefits, and any dispute between them and employees regarding FMLA leave.

Generally, employers are covered by the FMLA if they have 50 or more employees on their payroll for at least 20 calendar weeks in the current or preceding calendar year.  To be eligible for FMLA leave, employees must Have been employed for at least 12 months by the covered employer, work at least 1,250 hours in the last 12-month period, be at a worksite that is within 75 miles of where at least 50 employees work, have a specified family care or medical problem, provide reasonable advance notice and appropriate certificates, and not have exhausted their 12-workweek maximum for the current 12-month period.  Time spent on vacation or sick leave may be applied towards the 12-month requirement as long as the employee is maintained on the payroll and is receiving other benefits from the employer such as group health plan benefits and workers’ compensation coverage.

In order to satisfy the requirement of a “serious health condition” there must be an illness or injury involving either inpatient care or continuing treatment by a health care provider. The continuing treatment requirement is satisfied if an employee is incapacitated for more than three consecutive days and does one of the following: (1) visits a health care provider twice within 30 days of the first day of incapacity (unless extenuating circumstances prevent a follow-up visit), with the first visit coming within seven days of the first day of incapacity; or (2) sees a health care provider within seven days of the first day of incapacity and then begins a regimen of continuing treatment under the provider’s supervision (e.g., physical therapy, medication etc.).

The FMLA regulations include various forms of certifications that must be used to request FMLA leave including certifications of health care providers regarding the existence of a serious health condition and certifications. Certain employer representatives, such as human resource professionals and leave administrators, are permitted to contact an employee’s health care provider to clarify and authenticate a certification of medical condition received from the provider.

The federal regulations in this area are complex and the situation may be even more complicated when state laws are factored into the analysis regarding a particular employee’s request for family and medical leave.  Please contact our offices for assistance in understanding your obligations under the FMLA and in preparing and/or updating key policies and forms including a general statement of employee rights under the FMLA, a description of family and medical leave rights to be included in their personnel handbook and a separate description of rights relating to military leaves.