FMLA Quick Notes

Q When does the FMLA leave period begin?

Employers continue to struggle in complying with the federal Family and Medical Leave Act (FMLA) and its corresponding regulations. The FMLA requires employers to provide eligible employees with 12 workweeks of unpaid leave in any 12-month period to care for newborn or newly-placed adoptive or foster children, to care for certain relatives with serious health conditions, or to deal with their own serious health conditions.

But when does the clock start running on an employee’s leave? Employers might assume that the FMLA leave period begins on the first day of absence. But Department of Labor (DOL) regulations require employers to give notice to employees who request leave that the absence will count against their FMLA 12-week total. Until the notice is given, the clock doesn’t start running.

For example, if the employer does not give the designation notice until the employee has been gone for two weeks, the DOL regulations say that the 12-week period did not start running until the notice was given. The result, in this example, is that the employee can be on a leave protected by the FMLA for 14 weeks, rather than 12 weeks. (Before the designation notice is given, the employee still gets all the protections of the FMLA, but the employer may not count the time against the 12-week annual total.) Employers who do not understand this regulation have gotten into trouble by discharging or failing to reinstate employees who have been absent for more than 12 weeks, only to find that under the DOL regulations the employees still had FMLA leave rights. Employers who completely failed to give the designation notice have been shocked to learn that when they thought that the FMLA 12-week period had ended, it had not, according to the regulations, even begun.

Q. May my employer contact my health care provider about my serious health condition?

A. The regulations clarify that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. Under the regulations, employers may contact an employee’s health care provider for authentication or clarification of the medical certification by using a health care provider, a human resource professional, a leave administrator, or a management official. In order to address employee privacy concerns, the rule makes clear that in no case may the employee’s direct supervisor contact the employee’s health care provider. In order for an employee’s HIPAA-covered health care provider to provide an employer with individually-identifiable health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.

Q. Can my FMLA leave be counted against me for my bonus?

A. Under the regulations, an employer may deny a bonus that is based upon achieving a goal, such as hours worked, products sold or perfect attendance, to an employee who takes FMLA leave (and thus does not achieve the goal) as long as it treats employees taking FMLA leave the same as employees taking non-FMLA leave. For example, if an employer does not deny a perfect attendance bonus to employees using vacation leave, the employer may not deny the bonus to an employee who used vacation leave for a FMLA-qualifying reason.

Example:

Sasha uses ten days of FMLA leave during the quarter for surgery. Sasha substitutes paid vacation leave for her entire FMLA absence. Under Sasha’s employer’s quarterly attendance bonus policy, employees who use vacation leave are not disqualified from the bonus but employees who take unpaid leave are disqualified. Sasha’s employer must treat her the same way it would treat an employee using vacation leave for a non-FMLA reason and give Sasha the attendance bonus

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