Is Your Family Medical Leave Policy Up-to-Date?

February 28, 2020

The Administrator of the Department of Labor’s Wage and Hour Division (WHD) periodically responds to new Family Medical leave Act (FMLA) compliance questions from employers and employees. Notable ones are posted for the benefit of people facing similar situations. Here’s a sampling.

A recent case deals with whether an employee’s time away from work to attend regular meetings at her children’s school qualifies as FMLA-sanctioned leave. The meetings were with school officials to discuss the special needs of the children and appropriate “individualized education plans.”

Do School Meetings Qualify for FMLA Status?

The children’s special needs do meet the definition of a serious health condition, based on a certification by a healthcare professional. The school provides them with occupational, speech and physical therapy services. The employer granted leave under the FMLA for the employee to take her children to doctor visits but drew the line at also allowing leave for the school meetings.

The intermittent school meetings’ purpose is for the parent to receive “updates [on the] children’s progress and areas of concern; review recommendations made by [the] children’s doctors; [and] review any new test results and recommendations for additional therapy.”

In an earlier ruling, the WHD declared that an employee could take family medical leave to attend meetings regarding her mother. Attendance at these meetings, which related to her mother’s health conditions were “clearly essential to the employee’s ability to provide appropriate physical or psychological care to her mother.” Citing that ruling, the WHD agreed with the petitioner in the current case that her school meetings do qualify for FMLA status.

Can You Extend FMLA Leave?

Sometimes employers wonder about the legality of making family medical leave more generous than the norm. One such employer recently asked whether a business was permitted to not start the clock on the 12-week limit on unpaid, job-protected leave until employees have exhausted their accrued paid time off. This includes time off designated as vacation or sick leave.

This employer was aware of other companies that have adopted that practice, based on this language in the FMLA regulation: “An employer must observe any employment benefit or program that provides greater family and medical leave rights to employees than the rights provided by the FMLA.”

The WHD’s answer was unambiguous: “No.” The reason, it explained, is that as soon as an employer identifies (and validates) a leave request as “FMLA-qualifying,” that leave cannot be categorized any other way. It added, “Nothing in the FMLA prevents employers from adopting leave policies more generous than those required by the FMLA. However, an employer cannot designate more than 12 weeks of leave… as FMLA-protected.”

If an employee needs leave for FMLA-based reasons, he or she can’t take advantage of their employer’s paid leave policy first and then request 12 weeks of unpaid FMLA leave as well. The employer should be informed if the leave could qualify for an additional 12 weeks of FMLA-based leave.

Otherwise, the clock on the 12 weeks would have to start retroactive to the start of the paid leave period. Example: Joe’s employer allows four weeks of paid leave. He requests to use his leave beginning June 1, without informing his employer that the leave could also qualify for FMLA leave. Once Joe’s paid leave is exhausted and the employer is expecting him to return to work, Joe requests an additional 12 weeks of FMLA-based unpaid leave. His 12 weeks would start retroactively on June 1^st.

Does Time Stand Still During FMLA Leave?

To discourage employee “unexcused” absences, an employer instituted a new attendance policy, under which employees accrue points for tardiness or unexcused absences. Employees who receive a specified number of points over a 12-month period of “active employment” are penalized.

However, under that program, the 12-month period is suspended when employees are out on FMLA leave or leave due to a workers’ comp injury. Example: if the 12-month clock began on Jan. 1, and an employee was out on FMLA leave for the month of June, the 12-month period for point accumulation would extend until Feb. 1 of the following year.

An employee asked the WHD if this violates one’s FMLA rights. The answer that came back was “no.” “WHD’s longstanding position is that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment,” the administrator wrote.

When FMLA Status Can’t Impact Seniority Rights Accrual

Employers typically prefer to (but don’t have to) require employees seeking FMLA-qualified leave to have that leave run concurrently with an employee’s available accrued paid time off. That way, the FMLA 12-week limit on job-protected leave can only last 12 weeks. It can’t be extended if the employee’s accrued paid leave were counted separately and the employee started using up that accrued paid leave after the end of the 12-week unpaid leave period. The employer in this case had recently adopted that policy.

This case involves an employee covered by a collective bargaining agreement (CBA) that stipulates that the time an employee is out on paid leave is still counted toward that employee’s accrual of seniority credit, ultimately entitling him or her to other benefits. Under that policy, however, the absence from work on unpaid leave, such as unpaid FMLA leave, wouldn’t be credited to the employee’s seniority status.

In this case, a portion of the employee’s paid leave coincided with unpaid FMLA leave. The employee was concerned that the paid part of the leave would be ineligible to accumulate seniority credits because it was also deemed to be FMLA leave.

For that reason, the employee wanted to postpone the designation of the FMLA portion of the leave until after the accrued paid leave was used up.

The WHD’s response began with a general statement: “The FMLA applies in addition to or along with an employer’s polices or any CBAs. Employers may adopt, retain, or amend leave policies, including policies that provide more generous leave, as long as they comply with the FMLA.” Similarly, employer policies cannot limit employees’ rights under the FMLA.

“Given your employer’s policies regarding accrual of seniority,” the letter states, “when an employee takes FMLA leave that runs concurrently with CBA-protected accrued paid leave, the employee’s seniority status would be the same as it would if the employee took only CBA-protected accrued paid leave.”

As you can see, a number of issues may arise when employees seek leave. Always consult your employment law attorney when creating or updating an FMLA policy.

© 2020