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  Oracle Tips by Burleson

Family and Medical Leave Act of 1993 (FMLA)

The enforcement of this law is not under the jurisdiction of the Equal Employment Opportunity Commissionbut rather the Wage and Hour Division of the U.S. Department of Labor’s Employment Standards Administration. The FMLA allows for employees to take reasonable unpaid leave for certain family and medical reasons.

This law provides eligible employees with up to 12 weeks per year of unpaid leave for (1) the birth, care or placement of a child for adoption or foster care for a close family member with a serious health condition or (2) when an employee has a health condition that makes the employee unable to perform his or her job function. The FMLA also provides for intermittent leave, which allows an employee to take random time off from work for appointments attending to serious medical conditions.

An employer may be liable for damages under the FMLAfor disciplinary actions, including termination. This applies even if the employer truly believed the work absences were not covered by the FMLA. The terminated employee can make a case for interference with his or her FMLA rights, rather than having to prove discrimination or retaliation. Under an interference claim, the aggrieved party simply has to show that the leave of absence was a negative factor in the decision to discharge the employee.

Eligible employees who wish to use FMLAleave may be required to provide:

  • Advance notice of 30 days to the employer of the need for FMLAleave, when the need is foreseeable.

  • Notice to the employer that is as soon as practicable when the need for FMLA leave is not foreseeable. As soon as practicable means to provide at least verbal notice to the employer within one or two business days of knowing FMLA leave is needed.

  • Information to the employer that sufficiently justifies the need for FMLA leave. The employee does not have to mention FMLA when requesting the leave to qualify, and may only provide the reasons for the leave.

  • In the case where the employer is not made aware that the employee is out from work due to FMLAreasons, and the employee wants the leave to be for FMLA reasons afterwards, then FMLA notice must be given within two business days of returning to work.

Once an employee has given notice of FMLAleave, the employer must provide notice to the employee of the obligations of the employee, and the consequences for failure to meet these obligations. This notice by the employer must specify:

  • If the leave applies to the employee’s annual entitlement for FMLAleave.

  • If medical certification is required for leave notices regarding serious health conditions of the employee or employee’s immediate family member. This certification should be provided by a health care provider, and the employee must be allowed at least 15 calendar days to obtain the certification.

  • If the employee is required to pay health insurance premiums during leave, and the employee’s responsibility for the employer’s portion of the premiums if he or she does not return to work from leave.

  • The requirement or not for the employee to provide a fitness-for-duty certificate when he or she returns to work.

  • The employee’s right to reinstatement.

When an employee returns from an FMLAleave, they must be reinstated in his or her original job or to an equivalent job. An equivalent job is one that is very similar in compensation pay and benefits, as well as in stature. Any other terms and conditions of the former job would also require consideration by the employer.

Records retention under the FMLArequires that the employer maintain documents for three years with the dates and hours of FMLA leave taken by all eligible employees. Other documents required for three years retention include all notices from employees of request for FMLA leave and all employer policies related to the FMLA.

Wrongful Termination – FMLA Case

A wrongful terminationcase involving FMLAleave was decided in favor of the plaintiff against a Louisiana-based employer. The employee was out from work on leave for more than a month due to surgery on an ingrown toenail. This employee had a poor track record of work attendance in the past that may have adversely skewed the reaction of the employer to the leave. During the leave, the employee regularly contacted the employer to provide medical updates. Since the employee was not require to specifically state the term FMLA when requesting the leave and the toenail complications were considered a valid FMLA condition, the court ruled that the termination was unlawful.

The above book excerpt is from:

You're Fired! Firing Computer Professionals

The IT manager Guide for Terminating "With Cause"

ISBN 0-9744486-4-8

Robert Papaj

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