Please note: Published October 30, 2006 - Interpretations of and rules about the act have changed and this information is no longer current.
As most employers are now aware, the Family and Medical Leave Act (FMLA) requires covered employers to provide twelve weeks of unpaid leave to eligible employees within a 12-month period. The FMLA applies to private employers with 50 or more employees, and to all public employers.
An employee is eligible for and must be granted FMLA leave after he has been employed by the employer for a total of 12 or more months, and has worked (not including paid time off such as sick leave or vacation) at least 1,250 hours in the year preceding the requested leave of absence.
Also, an employee’s leave of absence qualifies as FMLA leave when it is taken for any of the following reasons:
- the employee’s serious health condition;
- to care for the employee’s spouse, child, or parent who has a serious health condition; or
- for the birth of a child, or the placement of a child for adoption or foster care.
FMLA Questions and ClarificationsMore than ten years have passed since the enactment of the FMLA, however, there remain certain questions that are commonly raised by employers, including the following:
Question: What reinstatement rights does an employee have where he would have been discharged or laid off during the leave, or where his job is changed during the leave?
Answer: An employee on an FMLA leave has no greater right to reinstatement than if the employee had continued to work instead of taking leave. If the employee would have been terminated or laid off for reasons unrelated to the leave, then the employee is not entitled to reinstatement. (However, the employee must still be given transfer rights if he would have had such rights absent the leave).
Indeed, an employer may effect the discharge or lay off during the FMLA leave when it otherwise would have occurred and terminate the continuation of the employee’s health benefits at that time. Additionally, if the employee’s job was reorganized or otherwise changed during the leave, the employee is only entitled to the reorganized or changed job he would have had if he had not taken a leave of absence.
The employer has the burden of proving, however, that the discharge, layoff, or job restructuring is not related to the FMLA leave. Thus, employers should be very careful not to use these limits on an employee’s reinstatement rights as an excuse to take advantage of the FMLA and affect the employee’s job status.
Question: What if an employee does not want FMLA leave? What if the employee prefers to take only vacation time, or workers’ compensation leave, or short-term disability (STD) leave, etc.?
Answer: If the reason for an employee’s leave qualifies as FMLA leave, the employee cannot “decline” FMLA leave. The employer can (and should) designate all qualifying time as FMLA leave and count that time against the employee’s 12-week leave entitlement. As employee’s leave of absence may simultaneously qualify as more than one type of leave, and FMLA leave may run concurrently with such other types of leaves.
Therefore, even if an employee is eligible for and receiving workers’ compensation benefits, or STD benefits, or vacation time, the same time can be considered FMLA leave if taken for FMLA-qualifying reasons. It is to an employer’s advantage to designate all eligible time as FMLA leave in order to reduce the employee’s remaining FMLA leave entitlement as much as appropriate.
More information about the The Family and Medical Leave Act.
Mel Muskovitz is a member of the Employment and Labor Section in the Ann Arbor office of Dykema Gossett PLLC. Other articles written by Mr. Muskovitz can be viewed at Dykema Gossett. Mr. Muskovitz can be reached at (734) 214-7633 or by email.
Disclaimer: Although Mel Muskovitz is an attorney, because this Web site is read by people from all states and from countries all over the world, the advice offered is correct, but different laws may govern your approaches to human resources. Please check with an employment law attorney to ascertain your decisions, policies, and practices meet the legal standards where you live and practice.
This article contains an overview. It is not intended to be a comprehensive discussion of the subject. Further, because every set of facts and circumstances may raise different legal issues, this article is not intended to be and should not be regarded as a legal opinion.