Calculating FMLA Leave: What Employers Need to Know

The Family Medical and Leave Act (FMLA) provides job security to employees who require time away from work due to illness or the need to care for family. By some accounts, the FMLA is one of the most difficult employment laws for an employer to administer and therefore is a risk management “legal labyrinth.” In particular, the seemingly simple task of calculating the duration of FMLA leave can be daunting.

Under the FMLA an “eligible” employee may take up to 12 weeks of leave during any 12 month period for the birth or adoption of a child, to care for a family member, or because of a personal health condition that prevents the employee from performing essential job functions. The employer must maintain the eligible employee’s existing level of health coverage and must reinstate the employee into the same or an equivalent position at the end of FMLA leave.

FMLA directives raise questions for employers regarding the calculation of employee leave time. Employers should consult with professionals about the specific requirements of the act, but there are several aspects of FMLA leave that every employer must know.

  • First, when an employee requests time off from work, the employer should take proactive steps to understand the basis for the leave and whether it qualifies under the FMLA. If the proposed leave clearly qualifies, the employer should begin the necessary FMLA procedures and provide the employee with required FMLA paperwork.
  • Second, if the employer designates the employee’s leave as FMLA leave, the FMLA requires that the employer notify the employee in writing of the designation. If the employer fails to do so, the employee’s time off may not be counted against her 12-week leave.
  • Third, employers must understand how FMLA leave interacts with other options available to the employee that may permit time off under federal or state law. In many cases, employers may require that the employee use accrued paid leave, maternity leave, or workers compensation leave, but the employer must notify the employee of the designation.
  • Finally, employers should consider options for situations when an employee seeks reduced or part-time work under the FMLA. In these circumstances employers must work with the employee to create a schedule that does not unduly disrupt the employer’s operations and that provides the employee with equivalent pay and benefits.

Covered employers and their agents are obligated to understand and correctly apply the FMLA. In the event of a violation, the FMLA provides for civil damages against the employer as well as any responsible individual. Employees may also be entitled to attorneys’ fees and liquidated damages. So, employers should consult with counsel to clarify any ambiguity under the act in order to avoid costly litigation.

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2 Comments

  1. CHristine

    The employer must maintain the eligible employee’s existing level of health coverage and must reinstate the employee into the same or an equivalent position at the end of FMLA leave. The question is – for how long must they provide the same or equivalent position? Can they have them work 1 day and say – we met our obligation for your return but now we (an At Will employer) have decided to terminate you.

    • Seth L. Laver

      An employer cannot sidestep the FMLA by placing an employee in the same position for a brief period of time only to demote the employee. Absent a valid basis for the demotion, the employer is exposed to liability on the grounds that the demotion was retaliation for taking time off under the FMLA. However, if the employer has a valid reason for the demotion that is unrelated to FMLA, then the employer can generally demote the employee following her return.

      As a practical matter, however, the closer in time between FMLA leave and a demotion, the more likely that the demotion may be perceived as retaliatory. Therefore, employers should take precautionary steps to ensure the demotion was unrelated to FMLA leave, and explain to the employee the reason for the demotion.

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