QUESTION: I know that the Family Medical Leave Act (“FMLA”) prohibits employers from penalizing or discriminating against employees for taking protected FMLA leave. I also understand that generally, an employer cannot refuse to give an employee an attendance bonus if the reason the employee does not qualify for the bonus is that he/she took FMLA leave. However, if an employer awards bonuses based on the number of hours or days worked in a given period, can it pro-rate the bonus for employees who take FMLA leave?

ANSWER

The U.S. Dept. of Labor is inviting interested parties with knowledge or experience with the Family and Medical Leave Act to submit their views on the FMLA rules and/or the administration of the law by Feb 2. “We’ve realized we need some fresh information and fresh thinking on the issues that have developed over nearly a dozen years since the regulations were implemented,” said DOL spokeswoman Victoria Lipnic. The use of unscheduled, intermittent leave seems to be one of the bigger problems for employers, according to the Dept. See the web page set up by the DOL for more information on the request and the FMLA.

A car salesman had worked for a covered employer for five years, left, then rejoined the company five years later. After seven months, the employee took medical leave, then was terminated. He filed suit claiming his termination was an FMLA violation.

Holding that the Family and Medical Leave Act is “ambiguous” on whether previous periods of employment count toward eligibility for the leave, the First Circuit rules that they do count, even though there was a lengthy break in between. The Court noted that the FMLA regulations make it clear that the Department of Labor did not intend for non-consecutive months of employment to count only if the employee maintained a continuing relationship with the company. Rucker v. Lee Holding Co.

The final rule for changes to the Family and Medical Leave Act, including additional leave for eligible employees to care for a seriously injured military family member or to prepare for a military deployment, has been transmitted to the Office of Management and Budget by the Dept. of Labor. A final rule could be issued sometime in the next 30 days after OMB completes its review, however, CCH reports that the final rule could be issued as soon as November 1 due to a White House memorandum that final regulations under the exiting Bush Administration should be completed by that date.

The revised rules are expected to clarify the definition of serious health condition, and the issue of intermittent leave. The military family leave amendments require covered employers to allow family members of combat-injured military personnel to take up to 26 weeks of unpaid leave to care for the service member and provide eligible employees up to 12 weeks of FMLA leave per year if there is a “military exigency” (as defined by the Secretary of Labor) arising out of the fact that the employee’s spouse, son, daughter, parent, or next of kin is called to active duty. This requirement is effective once the final rules are published.

The Congress has passed a revised Defense Authorization bill which includes an expansion of the Family and Medical Leave Act for eligible employees who have to care for a wounded military family member. The same provision was in an earlier bill passed by the Congress which was subsequently vetoed by President Bush because of another unrelated section. According to the National Association of Manufacturers, the President is expected to sign this legislation into law soon. NAM reports that H.R. 4986 includes the following expansion of FMLA:

• Active Duty Leave: This benefit provides 12 weeks of FMLA leave due to a spouse, son, daughter or parent being on active duty or having been notified of an impending call or ordered to active duty in the Armed Forces in support of a contingency operation. Active duty leave may be taken for any “exigency” (subject to regulation) related to the call-up and the leave may commence as soon as an individual receives a call-up notice.

• Caregiver Leave: This benefit provides 26 weeks of FMLA leave during a single 12-month period for a spouse, son, daughter, parent, or nearest blood relative caring for a recovering service member. A recovering service member is defined as a member of the Armed Forces who suffered an injury or illness while on active duty that may render the person unable to perform the duties of the member’s office, grade, rank or rating.

(HEC will be covering the issue of expanded FMLA for care of a wounded military family member in its February 12 program on the employment rights of returning military.) While regulations will need to be issued for the new law, the provision will be considered effective upon the President’s signature, NAM says.

The work days missed by an alcoholic employee while he sought, but did not receive, treatment for a relapse was not protected by the Family and Medical Leave Act rules the Seventh Circuit. The employee’s absences had put him over the limit for absenteeism under the company’s attendance policy, and he was subsequently terminated.

Although the employee’s physician averred that the employee’s “treatment” began when he first contacted the doctor’s office for an appointment, the Court says that the FMLA’s definition of treatment “does not include actions such as calling to make an appointment. Treatment would include examinations to determine if a serious health condition exists and evaluation of the condition.” Since the employee did not produce any evidence that he was being examined or evaluated on the disputed days, he was not entitled to FMLA leave on those dates, the Court holds. Darst v. Interstate Brands Corp.

Unpaid leave under the Family and Medical Leave Act will be extended from 12 weeks to six months for eligible spouses, children, and parents to care for wounded service members under a bill awaiting President Bush’s approval. The Congress passed the Injured Service Members Act earlier in December, and the President is expected to sign the measure. The FMLA covers employers with 50 or more employees.

An employee who was working on a reduced schedule because of her medical condition, but who repeatedly failed to turn in medical certification forms under the Family and Medical Leave Act despite being warned by her employer, was properly terminated from her position, the Seventh Circuit decides.

Although the Court had concerns about the company’s “unresponsiveness” when the employee asked for more information about her FMLA rights, it decides that this failure did not constitute interference, since the company did provide her with the FMLA forms she needed and “gave her ample opportunity to fulfill its request for additional information from her physician.” The company had issued three corrective action reports to the employee, including a three-day suspension without pay, for not turning in the required FMLA paperwork.

The employer “was entitled to receive [the] additional information, and it demonstrated that it was particularly interested to know the expected duration of her leave,” the Seventh Circuit observes. In addition, her behavior could also have constituted insubordination, the Court says: “The evidence demonstrates that [the employer] terminated [the plaintiff] for repeatedly ignoring its requests to either turn in the FMLA forms or begin working a full schedule. Ignoring repeated requests from a supervisor is insubordination.” Ridings v. Riverside Medical Center

The expansion of the Family and Medical Leave Act requires covered employers to allow family members of combat-injured military personnel to take up to 26 weeks of unpaid leave to care for the service member. This requirement takes effect immediately. Under the new amendments, employers must also provide employees up to 12 weeks of FMLA leave per year if there is a “military exigency” (as defined by the Secretary of Labor) arising out of the fact that the employee’s spouse, son, daughter, parent, or next of kin is called to active duty. This requirement is not effective until the Dept. of Labor issues its rules, but in the interim, the DOL encourages voluntary compliance until the regulations are published.

Meanwhile, the DOL has sent a draft of its proposed revised FMLA regulations to the Office of Management and Budget for review prior to publication for comment. The revised rules are expected to clarify the definition of serious health condition, and the issue of intermittent leave.

A manager violated the FMLA by failing to provide his employee with an individualized notice that her leave would be counted against her 12-week FMLA entitlement when as a result she exceeded her allotment and was reassigned to another position with lesser benefits, the Fifth Circuit holds. The employee contended that had she been notified that her leave would be counted, she would have postponed her surgery to a time when it would not have caused her to exceed her FMLA allowance.

Under the Dept. of Labor regulations, the employer is responsible for notifying eligible employees that their leave is designated as FMLA within two business days of learning that the leave was for a covered reason. “[T]he employee whose employer violated the individualized notice regulations still bears the burden of demonstrating that her rights have been impaired and that she has been prejudiced,” the Court says, noting that in this case, the employee proved that she was actually prejudiced by her manager’s noncompliance. Downey v. Strain

A company holiday occurring during a period in which the employee was absent due to Family and Medical Leave Act reasons can be counted as part of the leave, the U.S. First Circuit rules. The case involves a terminated employee who argued that she was denied the full number of FMLA days because her employer did not extend her leave to account for three holidays that fell within the blocks of time she took.

The Court interprets the intersection of two FMLA rules—the first stating that if an employee takes intermittent leave, only the amount of time actually taken may be counted toward the 12-week FMLA entitlement, and the second stating that in calculating the amount of FMLA taken, holidays occurring within the week taken as FMLA have no effect. Both regulations “fit together naturally,” says the Court. If an employee’s intermittent leave includes a full, holiday-containing week, FMLA rules provide that the “amount of leave used” includes the holiday, rules the Court. Mellen v. Boston University.

A warehouse worker who was undergoing progressive discipline for prior absences and tardies can go to trial on her claim that she was terminated in violation of the Family and Medical Leave Act, a federal court in Tennessee rules. The employee had accumulated points for her absences and had received written warnings per the company’s attendance policy. FMLA-qualifying absences were not counted as points under the policy. The employee had reported for duty, but was sent home by managers after they observed that she was perspiring heavily and throwing up. She called in sick the next day, but because she had run out of her sick leave, the absence was counted against her and a termination notice was prepared. When she returned to work with her doctor’s certification of illness and prescriptions, she was terminated. The court says that the evidence suggests that the company was “adequately apprised” that the worker may have had something more serious than a cold, which constituted a serious health condition under the FMLA. Although the employee didn’t request FMLA, “if an employer lacks sufficient information about the reason for an employee taking leave, it is incumbent upon the employer to ascertain whether the leave is potentially FMLA-qualifying,” says the court. Stevens v. Advance Stores Co. Inc.

Employers who have had problems in administering the Family and Medical Leave Act requirements are being asked by the National Association of Manufacturers to share their views with the U.S. Dept. of Labor. The DOL is currently reviewing the FMLA regulations for revision. “NAM surveys, meetings and member comments suggest that in the human resource area no regulation is more vexing and costly than the [FMLA] regulations,” says the group’s spokesman. The NAM, an employer lobbying group, has developed sample comments for employers to adapt in submitting their personal experiences with the rules. All comments are due to the DOL by Feb. 16, 2007.

Despite sharing a parent company’s employment policies, forms and payroll services, a subsidiary was not an integrated entity with its parent for the purposes of coverage under the Family and Medical Leave Act, the First Circuit ruled. A customer service representative terminated for absences related to her daughter’s care claimed that her company had the threshold 50 employees under FMLA if the parent corporation was included. There is a “strong presumption that a parent corporation is not the employer of its subsidiary’s employees,” the Court said, also ruling that parent and sub did not have common management, interrelation between operations, or centralized control of labor relations. Engelhardt v. S .P. Richards Co.

Covered employers must inform their employees about the military family leave under the amendment to the Family and Medical Leave Act , and the Dept. of Labor has released a poster employers can use while the department finalizes its rules.

In the meantime, the DOL also issued its proposed rules clarifying many of the ambiguities in the existing regulations and placing additional responsibilities on both employers and employees. The DOL proposes allowing the supplementation of disability payments such as Workers’ Compensation and Temporary Disability Insurance with paid leave; allowing employers to count FMLA absences in perfect attendance and other bonus programs; allowing direct contact between the employer and healthcare provider to clarify or authenticate the medical certification, among other changes. Employers would be required to provide more information to employees on their FMLA rights, leave entitlement, eligibility and the reasons why an employee is not eligible or why the leave is not designated as FMLA.
Employees could be expected to provide notice of need for FMLA leave at least prior to the start of a shift; make a reasonable effort to schedule intermittent leave so as not to disrupt the business; and to provide more information to employers for a determination of applicable leave. The DOL is seeking more public comment on some sections, including how to count increments of unscheduled intermittent leave in shifts that can’t be divided, and whether employees should be required to expressly assert their FMLA rights in certain situations.