 |
 |
 | |
III. Federal Law - Family Medical Leave Act (FMLA) ...continued...
Are Other Employment Benefits Protected by FMLA?
Your company cannot use FMLA leave as an excuse to end any employment benefit accrued prior to the date on which the leave begins.
An employee who has returned from leave and is restored to her previous position is not entitled to the accrual of any seniority or other employment benefits, including the accrual of paid leave based upon time worked, incentive bonuses or cash payments chosen by the employee instead of group health insurance coverage, during her leave.
If a certain benefit is based upon a pre-established number of hours worked each year and the employee does not work a sufficient number of hours to qualify for the benefit as a result of taking unpaid FMLA leave, the benefit is lost (as long as such benefits do not accrue for employees on other types of unpaid leave).
For other benefits, like additional group life insurance or supplemental disability coverage, the employer and the employee can choose to make payment arrangements to continue coverage during unpaid FMLA leave.
The employer can choose to continue the benefits to ensure that the employee will be eligible to be restored to the same benefits upon returning to work. This is relevant where election for coverage can only be made at certain times or status changes.
What Kind of Notice Is Required Before Taking FMLA Leave?
When you know about the need for leave ahead of time, you must give your employer at least 30 days notice, or as much notice as is practicable.
When the leave is not foreseeable, you must provide notice as soon as practicable. This generally means at least oral notice within two business days of learning of the need to take FMLA leave.
You are also required to provide your employer with sufficient information for the employer to understand that you need leave for FMLA-qualifying reasons. You do not have to mention FMLA but you must explain to your employer why the leave is necessary.
If you decide to have leave counted as FMLA leave and you were not clear in your earlier notice that the leave would be taken pursuant to FMLA, you must provide notice to the employer within two days of returning to work that the leave was taken for an FMLA-qualifying reason.
What Information Is Your Employer Required to Give You Regarding FMLA?
Employers covered by FMLA must:
• post a notice approved by the Labor Department outlining the rights and responsibilities created by FMLA;
• include information about employee rights and obligations under FMLA in employee handbooks or other written policy material; or
• if handbooks or other written material do not exist, provide general written guidance about employee rights and obligations under FMLA whenever an employee requests leave; and
• provide a written notice designating the leave as FMLA leave and detailing specific expectations and obligations of an employee who is exercising his/her FMLA entitlements.
The employer notice should be provided to the employee within one or two business days after receiving the employee’s notice of need for leave and include the following:
• that the leave will be counted against the employee’s annual FMLA leave entitlement;
• any requirements for the employee to furnish medical certification and the consequences of failing to do so;
• the employee’s right to elect to use accrued paid leave for unpaid FMLA leave and whether the employer will require the use of paid leave, and the conditions related to using paid leave;
• any requirement for the employee to make premium payments for maintaining group health insurance and the arrangement for making such payments;
• any requirement to present a fitness certification before being restored to her job;
• rights to job restoration upon return from leave;
• employee’s potential liability for reimbursement of health insurance premiums paid by the employer during the leave if she does not return to work after taking FMLA leave; and
• whether the employee qualifies as a “key” employee and the circumstances under which the employee may not be restored to her job following leave.
Breaking the Law: Employer Violations of FMLA
FMLA prohibits any covered employer from interfering with, restraining, or denying the exercise of any of the rights provided by FMLA. It is also unlawful for an employer to fire or discriminate against anyone for opposing any practice, or because of involvement in any proceeding, related to FMLA. In other words, your employer cannot fire you or take any other adverse employment action against you for complaining about a violation of FMLA.
Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies. Employers are prohibited from discriminating against or interfering with employees who take FMLA leave.
Enforcement
The FMLA gives employees the right to file a complaint with the Wage and Hour Division of the Department of Labor’s Employment Standards Administration.
They also have the right to file a private civil lawsuit under the FMLA (or cause a complaint or lawsuit to be filed), and cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner.
Other Provisions
Some special rules apply to employees of schools (FMLA calls covered schools “local education agencies”). These rules provide for FMLA leave to be taken in blocks of time when the leave is needed intermittently or when leave is required near the end of a school term.
Many states and other jurisdictions also have family or medical leave laws. Check out the Appendix to this test for the applicable laws in your home state. If both the federal law and a state law apply to a particular employer, you are entitled to the most generous benefit provided under either law. Pick the law that does the most for you – and that’s almost always the one that applies.
Employers may also provide family and medical leave that is more generous than the FMLA leave requirements via their own corporate policy.
The FMLA does not modify the Pregnancy Discrimination Act or any state law which prohibits discrimination. They are intended to work together and have successfully changed the lives of young working mothers across America.
Proceed to - Maternity Leave State Law
• post a notice approved by the Labor Department outlining the rights and responsibilities created by FMLA;
• include information about employee rights and obligations under FMLA in employee handbooks or other written policy material; or
• if handbooks or other written material do not exist, provide general written guidance about employee rights and obligations under FMLA whenever an employee requests leave; and
• provide a written notice designating the leave as FMLA leave and detailing specific expectations and obligations of an employee who is exercising his/her FMLA entitlements.
The employer notice should be provided to the employee within one or two business days after receiving the employee’s notice of need for leave and include the following:
• that the leave will be counted against the employee’s annual FMLA leave entitlement;
• any requirements for the employee to furnish medical certification and the consequences of failing to do so;
• the employee’s right to elect to use accrued paid leave for unpaid FMLA leave and whether the employer will require the use of paid leave, and the conditions related to using paid leave;
• any requirement for the employee to make premium payments for maintaining group health insurance and the arrangement for making such payments;
• any requirement to present a fitness certification before being restored to her job;
• rights to job restoration upon return from leave;
• employee’s potential liability for reimbursement of health insurance premiums paid by the employer during the leave if she does not return to work after taking FMLA leave; and
• whether the employee qualifies as a “key” employee and the circumstances under which the employee may not be restored to her job following leave.
Breaking the Law: Employer Violations of FMLA
FMLA prohibits any covered employer from interfering with, restraining, or denying the exercise of any of the rights provided by FMLA. It is also unlawful for an employer to fire or discriminate against anyone for opposing any practice, or because of involvement in any proceeding, related to FMLA. In other words, your employer cannot fire you or take any other adverse employment action against you for complaining about a violation of FMLA.
Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies. Employers are prohibited from discriminating against or interfering with employees who take FMLA leave.
Enforcement
The FMLA gives employees the right to file a complaint with the Wage and Hour Division of the Department of Labor’s Employment Standards Administration.
They also have the right to file a private civil lawsuit under the FMLA (or cause a complaint or lawsuit to be filed), and cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner.
Other Provisions
Some special rules apply to employees of schools (FMLA calls covered schools “local education agencies”). These rules provide for FMLA leave to be taken in blocks of time when the leave is needed intermittently or when leave is required near the end of a school term.
Many states and other jurisdictions also have family or medical leave laws. Check out the Appendix to this test for the applicable laws in your home state. If both the federal law and a state law apply to a particular employer, you are entitled to the most generous benefit provided under either law. Pick the law that does the most for you – and that’s almost always the one that applies.
Employers may also provide family and medical leave that is more generous than the FMLA leave requirements via their own corporate policy.
The FMLA does not modify the Pregnancy Discrimination Act or any state law which prohibits discrimination. They are intended to work together and have successfully changed the lives of young working mothers across America.
Proceed to - Maternity Leave State Law
