The Family Medical Leave Act
the Family and Medical Leave Act (FMLA) an employee who has worked
1250 hours within the past year may take up to 12 weeks of unpaid
leave to recover from a serious health condition or to care for
a family member with a similar condition. The FMLA allows employees
to take intermittent leave when an employee demonstrates that short
periods of leave are medically necessary.
FMLA leave, an employee must return to the job held when the employer
approved the leave or to an equivalent position.
FMLA also prohibits retaliation against an employee who takes leave,
but does not guarantee a job. An employer should treat an employee
who takes FMLA leave as if he or she had not taken leave. For example,
if the employer reduces its workforce or an employer has scheduled
an employee to be terminated, transferred or demoted prior to his
or her leave, the FMLA offers no protection against the scheduled
more frustrating aspects of the FMLA, from an employer's perspective,
are managing intermittent leaves of absence and discipline of employees
who have taken time. Supervisors often believe they have no control
over the scheduling of intermittent leave, or fear that any employment
action involving an employee who has exercised rights under the
FMLA will create liability for themselves and their employer. But
the FMLA does allow some flexibility without creating liability.
FMLA provides supervisors the following tools to manage intermittent
employee must present medical documentation that his/her medical
condition can best be accommodated through intermittent leave.
part of its medical certification form, an employer may request
the projected number and dates of treatments, and the projected
period of recovery following a treatment. The employer may also
ask whether the treatments may be scheduled during off-work or
employer may require an employee to consult with his or her supervisor
to schedule intermittent leave. An employee must engage in a discussion
to reach an agreeable treatment schedule, subject to a health
care provider's approval.
An employer may request re-certification of an employee's need
for intermittent leave every 30 days. An employee must pay the
cost of obtaining a medical certification.
lessen the disruption caused by periodic absences, an employer
may transfer an employee who requires intermittent leave to an
alternate position provided the employee's pay and benefits remain
or Termination of Employees on FMLA Leave
the FMLA prohibits employers from taking "adverse employment
actions" such as discipline or termination against employees
when they exercise leave rights, employers may discipline or terminate
employees for reasons unrelated to FMLA leave. Under Department
of Labor rules, an employer must prove that it would have disciplined
or terminated an employee regardless of the request for, or use
of, FMLA leave. An employer must explain why it didn't act before
the employee exercised FMLA rights.
discovered performance issues often justify discipline. When others
assume the duties of an employee who has taken extended leave, they
sometimes discover their colleague hasn't performed critical duties.
Courts have held that the discovery of significant performance issues
justifies termination of an employee while on leave.
if an employee under-performed before FMLA leave or the discovery
during leave involves poor performance but doesn't involve duties
critical to the operation of the department? In that case, a supervisor
should counsel the employee about the performance issues and if
the documented pattern continues, disciplinary action may follow.
An employer can easily defend a claim of retaliation by showing
that it documented performance problems and discussed the problems
before the employee exercised FMLA rights. Conversely, if an employee
underperformed before FMLA leave and the supervisor documents the
problems only after the employee has requested leave, a court may
find that resulting discipline is retaliatory.
in the Summer 2005 Edition of In Brief