Have you ever scheduled an early-shift employee to cover for a
late-shift employee who has just taken medical leave? The covering
employee probably was not excited to have to work that extra shift.
While the logistics of employee schedules can be difficult, it can
be even more burdensome (and more important) to handle the
employee's medical leave appropriately and in accordance with
the law.
What do hospitality employers need to be mindful of when an
employee takes a medical leave? This article discusses some of the
strategies and principles that employers can use when medical leave
issues arise.
The Family Medical Leave Act
The Family Medical Leave Act, also known as "FMLA," generally entitles an employee to twelve weeks of unpaid, job-protected leave for the employee's serious medical condition, or for the serious medical condition of an employee's immediate family member. FMLA does not apply to all employers. Only employers who operate with 50 or more employees are covered under the FMLA leave. FMLA also does not apply to all employees. The employee must have worked at least 1,250 hours within the twelve-month period preceding the beginning of the requested leave and they must have worked at a location with 50 or more employees within a 75 mile radius. Employees also must have been employed for at least a year.
Eligibility Depends on Hours Worked
The company must accurately calculate hours worked for FMLA
eligibility. An employer should have a procedure to determine
whether FMLA applies to a particular employee, including whether
they worked for a year and whether they meet the 1,250 hours-worked
requirement.
Employers should also have a policy that establishes how it
calculates the use and duration of leave. Employers often will
choose to implement a rolling 12-month period where its policies
define how much FMLA leave an employee has left to based upon the
12 months immediately preceding the employee's request for
leave. Alternative methods of hours-worked calculation include the
calendar year (i.e. January 1 through December 31), any fixed 12
month period, and the 12 month period measured forward. These are
all acceptable methods to establish the 12 month period to be
uniformly applied to all employees taking FMLA leave.
Full-Time, Intermittent, and Reduced Schedule Leave Are Different
Employers must ascertain whether the employee's leave is indefinite or intermittent. To do this, the employer should communicate with the employee immediately upon receipt of the leave request to understand the extent of the leave. The employer should also document the type of leave the employee requests and prepare procedures to track the employee's adherence to the proposed schedule. Employers can also draft an agreement with the employee regarding the employee's schedule on leave. This is especially important for employees on an intermittent or reduced leave schedule because it is the employers burden to track the employee's schedule. Otherwise, the employee could say that he or she was working while on leave which could lead to claims of unpaid wages. Employers should incorporate a Certification of Health Care Provider form and a Leave of Absence Request form into their leave management documents.
Designate Leave as FMLA Immediately
If FMLA applies to the situation, the medical leave should be
designated as an FMLA-qualifying leave immediately. As soon as
practicable (and often before the leave actually begins), the
employer must provide formal notice to the employee that the leave
will be considered FMLA leave. A proper designation will inform the
employee how the leave will impact accrued vacation time, rights to
future FMLA leave, sick days, PTO, and any other
time-away-from-work policies that the employer might observe.
If FMLA leave is not designated immediately, an employer may
retroactively designate the leave as FMLA, but only under limited
circumstances. Be advised that retroactive designation can be
problematic. If the employee can show that he or she would be
harmed, or prejudiced, by the retroactive designation, by the
employer's failure to designate the leave appropriately, then
retroactive designation is not allowed. Take, for example, an
employee expected to use his FMLA entitlement to tend to his spouse
in the future. Unexpectedly, his child became ill and the employee
had to take time off to help his child recover at home. The time
spent taking care of his child qualified for FMLA, but the employer
did not designate the leave as FMLA. The employee, under the belief
that he still had his full FMLA entitlement, did not change any of
his plans for his spouse. The employee scheduled surgeries and
declined to make contingent arrangements, believing he had not
exhausted his FMLA entitlement. In the described situation, the
employer may not be able to retroactively designate the earlier
leave, for the child, as FMLA leave, even if he were to designate
it before the employee returned from tending to his child.
Make Timely Requests for Medical Certification
Be sure to get all necessary medical certifications and document
each of your requests for the same. Employer policies should notify
employees what conditions trigger FMLA leave and the types of
inquiries an employer will make to validate and make necessary
adjustments for leave. These inquiries might include a
questionnaire for the employee to determine whether the
employee's condition qualifies for FMLA and whether the
employee intends to return to work. The employer should also be
sure to obtain the expected duration of the employee's leave
from the physician.
Second medical opinions are an option, but employers must front
the bill. The employer can, at its own cost, request a second
medical opinion when the employer has reason to doubt the validity
of a medical certification. The employer can even designate a
health care provider for the second opinion, so long as the
employer does not employ the health care provider on a regular
basis. When the first and second opinions differ, the employer may,
again at its own expense, seek a final and binding opinion
designated at the approval of both the employer and employee.
Additional medical opinions should only be requested when there is
reliable evidence that the initial medical opinion is fraudulent or
deficient in some way.
Stay Updated On Employees' Leave Requirements
Employers must track the employee's leave entitlement
throughout the leave and request recertification if and when
appropriate. While an employee is on FMLA leave, the employer
should communicate with the employee periodically regarding the
status and timing of the employee's intent to return to work.
The employer may request that the employee provide medical
certification to qualify any update or change. If an employee
requires intermittent leave (such as a half day every other day to
care for a seriously ill family member), this must also be
designated as FMLA leave and counted toward the employee's 12
week limit. But again, this must be diligently calculated and
tracked. The employer can request that the employee's physician
recertify the leave as frequently as every 12 months.
The employer is not entitled to request information about the
employee's health condition. Therefore, while courteous
inquiries may be socially appropriate, employers should be cautious
with questions about private medical conditions. Furthermore, the
employer cannot request information more frequently than every 30
days except under limited circumstances, such as when the employee
requests an extension or when the employer learns of new
information that casts doubt on the employee's stated reason
for absence.
Health Insurance Premiums
Employers are required to maintain the employee's health benefits for the duration of the FMLA leave, but employees are generally responsible for their share of the premiums. Should an employee fail to pay for their share, employer's must not cancel health coverage without following the appropriate procedures. Pursuant to the FMLA regulations, 15 days before cancellation of any group insurance plan, all employers must notify the employee, in writing, that a failure to pay will result in cancelation of the employee's health insurance. Otherwise, any cancellation of health insurance will be deemed to violate the law.
What Happens When an Employee Exhausts FMLA Leave
When the employee's FMLA entitlement ends, the employer is
no longer under any obligation to continue paying health insurance
premiums. The employee can be placed on COBRA after FMLA is over.
However, given the continuing obligation to accommodate under the
American's with Disability Act, the conservative approach is
the notify the employee that his or her FMLA leave is exhausted and
clarify that the discontinuation of medical benefits is not a
termination of employment.
If the employee returns from FMLA leave, the employee must be
restored to his or her original job, or an "equivalent"
job, meaning virtually identical pay, benefits, and other
employment terms and conditions. Furthermore, an employer cannot
penalize the employee for using FMLA leave by denying employment
benefits that the employee earned or was entitled to before using
the FMLA leave.
Leave Beyond the FMLA Entitlement
FMLA does not create an entitlement to indefinite leave for any
employee. If the employee requests an extension of leave beyond
their FMLA entitlement, the employer should consider this request
carefully. A blanket policy of terminating employees who do not
return to work at the end of FMLA could run afoul of other laws,
such as the Americans with Disabilities Act, or "ADA."
The ADA may require that the employer make reasonable
accommodations for an employee's medical condition, which may
in turn require further medical leave beyond the requisite 12
weeks.
Employers must conduct an ADA analysis to determine if it can
accommodate the employee's disability and whether that
accommodation would constitute an "undue hardship." In
this procedure, the employer should evaluate the employee's
position and duties, review the needs of the business and determine
whether it is possible to accommodate the employee's condition,
if covered, without undue hardship to the employer. Whether an
accommodation would impose an undue hardship on the employer
depends on the nature and cost of the accommodation, the financial
resources of the facility making the accommodation, the financial
resources of the employer, the type of operation the employer
conducts, and the impact the accommodation would have on the
facility's operations. Employers should consider viable
alternatives to accommodations that may be difficult to implement
and determine if it is possible for an employee to partially absorb
the cost of an accommodation that would otherwise constitute an
undue hardship. Undue hardship analysis is a fact-based inquiry
and, with exception to the most obvious cases, should be reviewed
with counsel.
Preparing and implementing FMLA policies can often be unintuitive.
While this article may be used as an FMLA guide, it should not be
construed as legal advice. Employers are encouraged to contact
competent employment counsel regarding FMLA or any other employment
law issue they may have.
This article was first published in Hotel Executive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.