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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
http://www.rampant-books.com/book_2005_1_firing.htm |
