by Amanda Pestana
Today, we will discuss the FMLA leave, statistics, and facts for both employees and employers, to ensure employers are adhering to the law, and employees have the knowledge to overcome challenging situations in the workplace.
Former President Bill Clinton signed the Law in 1993 requiring employers to grant up to 12 weeks of unpaid leave each year to individuals recovering "from a medical condition, caring for sick family members, or following the birth or adoption of a child under the age of 18." This law is equally applicable to both males and females.
60% of workers are covered by this act, which includes private-sector companies with 50 or more employees, schools regardless of the number of people working there, and public agencies. However, to qualify for FMLA leave, a person needs to have worked for their employer a minimum of 12 months or 1,250 hours during the 12-month period "immediately before the leave," which amounts to about 24 hours a week.
During the first two decades of the act more than 100 million times, according to the U.S. Department of Labor, employees used FMLA leave. Lisa Berg, an employment attorney (Miami-Based) works for Stearns Weaver Miller, discusses the importance of developing sound policy and emphasizes how employers should establish a uniform procedure for all types of leaves. Businesses need a written policy and processes that are up-to-date and addresses the following concerns:
How the 12-week leave period is calculated
Notice requirements for workers requesting leave
Medical certification rules documenting the need for time off.
Steps employees must take to report to the company while on leave.
Eligibility for benefits while employees are out.
Fitness-for-duty certification requirements.
Employers do not forget to specify whether your business requires a paid vacation, sick, or personal time to be used with unpaid FMLA leave. Companies need to enforce their procedures uniformly.
Employees that do not fall under the FMLA requirements other laws protect you - especially if you are pregnant!
To be up-to-date with what is happening with the court cases on FMLA, the Equal Employment Opportunity Commission held in many instances that leaving will be in accommodation under the Americans with Disabilities Act (ADA). Therefore, you can administer the FMLA with the ADA.
(This is crucial for employees needing the FMLA, but find challenges along the way.)
For entrepreneurs starting off their business and might not have the number of employees (50 or more), I would still strongly recommend having a policy in place for your existing employees. Although there are templates available to create your own FMLA policy, ADA policy, and others, it is vital to have a legal counsel revise your final product because definitions like "qualifying condition," "serious health condition," and others are evolving.
Here is an example of an FMLA court case in 2018 in which the court decisions are highlighted below:
Background information: Private Sector Employer | Basic Coverage Standard
The Court denied the defendant's motion to dismiss the plaintiff's FMLA claim, in which it contended that the plaintiff failed to allege that is was covered employer by the statute correctly.
The Plaintiff is Denise Sando, who was suing the defendants Wood River Pharmacy, Inc. for violating her rights under the ADA, FMLA, and state law. Her position was as a clerk pharmacy technician and a unit dose department manager. She claimed that the defendants "discriminated against her in various ways because she needed to work a reduced schedule as a result of multiple medical conditions." She went on to claim that they continuously discriminated against her even after she took the medical leave, and Wood River ultimately fired her. After she was fired, Denise Sando claimed that Wood River, the defendants, prevented her from getting another job.
Even though Denise Sando did not provide any facts, the Court observed the following:
A plaintiff should not bear the burden of pleading with more particularity when the plaintiff does not know the specific [facts] and can learn of them only through discovery." Therefore, the Court did not require the plaintiff to demonstrate what they knew or should have known. "If the defendant wanted to challenge whether it was covered under the FMLA, it could raise that issue on summary judgment.
Also, in this case, Denise Sando alleged that Wood River "maliciously provided disparaging references and discouraged others from hiring Plaintiff" and that statements were made "in bad faith" because of her "protected conduct and her disabilities." These allegations were sufficient at the pleading stage and satisfied the burden Sando had. The court denied Wood River's motion to dismiss in full this case.
https://www.hrmorning.com/fmla/ (image from HR Morning)
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