By Justin M. Harrison, Esq.

 

This month's Legal Minute with Jackson Kelly PLLC provides a general review of the Family and Medical Leave Act ("FMLA").

 

The FMLA was adopted in 1993 and it is probably the least burdensome requirement for employers, at least in terms of the basic rules regarding eligibility and entitlement. FQHCs with 50 or more employees must provide 12 weeks of qualifying leave to any employee who has worked at least 1,250 hours during the 12-month period immediately preceding leave. Generally, employees are entitled to take FMLA leave for the birth or placement of a child, to care for a close family member with a serious health condition, for the employee's own serious health condition, or for certain situations involving a close family member serving in the military on activity duty. Most FMLA situations involve leave in large blocks of time (e.g., two weeks of leave, one month of leave, etc.). The most difficult aspect of FMLA is managing intermittent leave. In some situations, employees may be eligible to take FMLA on an intermittent basis, and employers often struggle to manage these situations because they are susceptible to abuse by employees.

 

FQHCs that are covered employers under the FMLA must post a notice explaining rights and responsibilities under the FMLA, and information regarding the FMLA must be included in employee handbooks or otherwise distributed to employees. When an employee requests FMLA leave, FQHCs are required to acknowledge the request and provide additional notice to the employee regarding his or her eligibility, as well as his or her rights. Some employers assume that by simply providing 12 weeks of leave that they are complying with the FMLA, but there are situations (i.e., lawsuits), where the U.S. Department of Labor will challenge an employer's failure to follow the posting and notice requirements. In some circumstances, the failure to provide proper posting and notice requirements can be used against the employer to provide employees with additional leave or reinstatement.

 

Employers are entitled to request medical certification when an employee requests FMLA leave due to his or own serious health condition or a covered family member's serious health condition. Additionally, an employer may require second or third medical opinions (at the employer's expense), as well as periodic recertification. The medical certification is intended to allow employers to ascertain whether a serious health condition exists. The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Importantly, not every physical or mental ailment will qualify as a serious health condition. For example, minor conditions such as the common cold, headaches, the flu, upset stomach, and cosmetic procedures do not qualify as serious health conditions.

 

When employees return from FMLA leave, they are entitled to be restored to their original job or to a job with equivalent pay, benefits, and other terms and conditions of employment. During FMLA leave, FQHCs are required to maintain group health insurance coverage for an employee, but the employee can be required to pay for their share of health insurance premiums.

 

The FMLA allows FQHCs some flexibility in determining whether to allow employees to use their paid time off in combination with FMLA leave. This is referred to as running FMLA leave concurrently, and most employers choose to follow this approach to minimize the stacking of various leave benefits. Employers can run FMLA concurrently with any form of paid time off, as well as workers' compensation leave; however, employers are prohibited from requiring - and employees are prohibited from electing - substitution of accrued leave while an employee is receiving wage replacement benefits through workers' compensation or temporary disability insurance. Employers who choose to run FMLA concurrently with other forms of leave are required to provide notice of this through their FMLA postings and individual notices to employees who request FMLA leave.

 

What happens when an employee exhausts their entitlement to FMLA leave? If the employee is receiving temporary total disability benefits through workers' compensation, West Virginia law essentially requires you to maintain the status quo. If the employee's absence is not related to workers' compensation, and you haven't received any communication from the employee, give them a call and inquire about their intentions to return to work. If the employee needs more time due to their own serious health condition, you may have a disability accommodation issue that needs to be evaluated under state and federal law, which we'll address in the next installment of the Legal Minute.

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Justin M. Harrison is a labor & employment lawyer at Jackson Kelly PLLC. He is available for consultation through a special retainer relationship with the WVPCA. Justin can be reached at (304) 340-1358, and you can follow him on Twitter @wvhrlawyer.

Jackson Kelly attorneys provide limited consultation to all members of the WVPCA at no charge, as part of the WVPCA contract. There is no limit to the number of calls which any member may make. All inquiries within the scope of professional competence of firm attorneys will be addressed. Inquiries which require expertise not available through the firm will be promptly identified and, when requested, Jackson Kelly will assist in referring the matter to accounting firms, insurance agents, or others as circumstances warrant.

 

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Justin M. Harrison is a labor & employment lawyer with Jackson Kelly PLLC. He is available for consultation through a special retainer relationship with the WVPCA.  Justin can be reached at 304.340.1358 and via email at justin.harrison@jacksonkelly.com.