Before diving in to all the legal niceties, I find it helpful to step back and consider why these laws get passed in the first place
Why we have these tricky laws….
The FMLA was passed to try and balance employees’ need for time off to get healthy (or help a family member get healthy) against employers’ need to have an employee doing the work, without costing the employer too much.
Military Caregiver Leave. An eligible employee shall be entitled to up to 26 work weeks of leave during the applicable twelve month period as defined by the employer in order to care for an eligible service member with a serious injury or illness;
1) The employee must be the spouse, son or daughter, parent, or next of kin of the eligible service member.
2) The eligible service member must have an injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform the duties of his/her office.
Qualifying Exigency Leave. An eligible employee shall be entitled to up to 12 work weeks of leave during the applicable twelve month period as defined by the employer while the employee’s son, daughter, or parent is on active duty or call to active duty status for a qualifying exigency.
1) To qualify for this leave, the service member must be a member of the National Guard, Reserve , or a retired member of the regular armed forces or reserve. There is no leave entitlement for employees with family members in the regular Armed Forces.
2) Qualifying exigencies include : short notice deployment, military events, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and related exigencies.
The twelve month period during which an employee may take FMLA leave is calculated as a “rolling” twelve-month period measured backward from the date an employee uses any FMLA leave. Each time an employee takes FMLA leave, the remaining leave entitlement period will consist of any of the balance of the 12 weeks which has not been used during the immediately preceding twelve months.
Employer must designate the leave as FMLA leave and provide notice to the employee, generally within 5 days of the notice of the need for the leave (825.300(b)) DOL form WH-381
If designation not properly done by employer, it may not count against the FMLA leave allotment if the employee can show harm or injury as a result (825.301) -- effectively extends 12 weeks
Employer and employee may agree to retroactive application
Employer must provide notice of specific obligations and expectations of employees on leave; Form WH 382. Note that if the employer will seek fitness for duty (discussed later) that intent and essential job functions must be on this form
Employer may have uniformly applied policy that requires employee’s health care provider to certify that the employer is able to return to work
Fitness for duty should specify the essential job functions
If employee in on intermittent or reduced schedule leave, employer may seek fitness for duty certifications every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform duties
Intermittent FMLA leave may be taken in the shortest timeframe that the employer’s payroll system may account for
Employer cannot require employee to take more leave than necessary
Full-time employees are eligible for a total of 480 hours of intermittent leave (yes, that is 12 weeks of 40 hours a week)
Part-time employees get pro-rata share
(if work 28 hours a week, eligible for 336 hours of leave – 28 hrs. x 12 weeks)
Different fitness for duty rights for employers
Employers may require an employee on a reduced schedule or intermittent leave schedule to submit a fitness for duty examination once every 30 days if there is a reasonable safety concern about the employee’s ability to perform his job based on the condition
What can you tell other employees about the affected employee’s leave?
Huge concern that legislature does not speak to.
Under ADA, you cannot say the employer is accommodating on the basis of a disability
And cannot say medical condition
As unsatisfactory as the answer is, tell the other employees:
That leave is provided to comply with applicable law, or
That leave was provided for a legitimate business reason.
An employee who is a natural or adoptive parent may request an unpaid leave of absence in conjunction with the birth or adoption of a child. The length of the unpaid leave shall not exceed six weeks under state law and twelve weeks under federal law.
Employees subpoenaed as witness in connection with employment or called for jury duty shall receive their regular compensation and other benefits less the amount of jury or witness fees. Employees shall notify their supervisor when served with a subpoena or notice of jury duty. Employees shall return to their regular work duties if released from court duty during their scheduled hours of work
For leave situations, you are usually dealing with Temporary Total Disability (employee unable to work due to injury for 3 consecutive days) or Temporary Partial Disability (employee may work another position, but not yours)
Employers may want to find a light duty position within employee’s restrictions while employee is on WC so they get work and so they do not have to pay 2/3 WC payment
Employees have a cause of action under Minn. Stat. 176.82 if employer fails to offer continued employment to the employee, without good cause, when such employment is available within the employee’s restrictions