By Melissa Walker
Employee A has announced her plans to take time off from work when she has a baby. Employee B had a stroke and needs time away to recover. Meanwhile, employee C is caring for a sick parent and has to occasionally be gone from work for appointments.
As their employer, you may or may not be required to meet all or some of their needs under the federal Family and Medical Leave Act and the Iowa Civil Rights Act, which protects the jobs of employees who have been employed for less than a year for certain medical conditions that include childbirth.
FMLA is a federal law that entitles eligible employees of covered employers (key terms) to take unpaid, job-protected leave for specified reasons with group health insurance coverage under the same terms and conditions as if they had not taken leave, according to the U.S. Department of Labor. It was designed to give employees protection as they strive to balance their work and family responsibilities.
Here’s a guide to help business owners understand their obligations:
- Know the federal, state legal requirements
The labor department has an FMLA “Adviser” who guides businesses and employees about the rules and requirements of the federal leave act.
In general, FMLA covers only certain employers and employees; restores the employee’s job after he or she returns to work; sets requirements for notice and approval of an employee’s leave; and protects an employee who requests to take leave from reprimand or losing his or her job.
FMLA applies to employers (and all public agencies) with 50 or more employees if key terms are met:
A covered employer is any private sector employer who employs 50 or more people for at least 20 workweeks in the current or preceding calendar year either at the employee’s worksite or within 75 miles of the worksite. Joint employers of covered employers may also be included. This refers to situations where more than one employer utilizes the services of some employees or controls a group of employees.
An eligible employee must work for a covered employer; have been employed by that business for at least 12 months; has worked at least 1,250 hours during the 12 months prior to leave; and work at a site where the employer has 50 or more workers within 75 miles of that worksite.
The Waukee Community School District has between 50 and 60 employees who take FMLA each year, the majority of which is for maternity leave. It’s an issue Human Resources Director Terry Welker deals with on almost a daily basis.
The school district is required to follow the regulations of FMLA because of the number of people it employees, but district officials also work with those who have not yet been with the organization for a year to take time away as needed. The employee could take time unpaid or use sick days or personal time, Welker said.
“We want to help the employee through tough times,” he said. “The majority (of FMLA leaves) are pregnancy related, but there are the cancers and long-term illness and car wrecks — the life events that happen to people. (FMLA) projects their job through life events.
“We see every one of our employees as our primary asset. If they need a little extra time off in order to get through a life event, we do what we can,” Welker continued.
The Foster Group in West Des Moines is one of those companies that is not legally obligated to provide leave for its employees because the company has fewer than the 50 mandated by law. The company has 46 employees.
Employees can, however, still request excused leave for a variety of medical-related reasons under the company’s own policy, says said Brent Carlson, who leads Foster’s finance, compliance and human resources departments.
“We’ve had some employees who have had sick spouses. We’ve had employees who have sick kids and parents. Those are on a case-by-case basis,” he said. “As an employer, we like to think we’re small enough and flexible enough that we recognize our most important asset beside the clients we serve are our employees.”
According to FMLA, employees are entitled to request leave for a variety of reasons that include:
Childbirth and to care for a newborn
Care for an adopted or foster care child within one year of placement
Care for a family member with a serious health condition
The employee’s own serious health condition that makes him or her unable to perform the functions of his or her job
Covered employers must post a notice at the worksite that explains the rights and responsibilities under FMLA. Failure to do so can result in a $110 penalty. Employers also must include information about FMLA in their employee handbook and give the employee information about their rights and eligibility if the employee requests FMLA leave.
It is also the employer’s responsibility to notify the employee when his or her FMLA leave has been approved, and to track an employee’s leave and let him or her know how much is left.
- Recognize the signs you might be interfering with leave
FMLA prohibits employers from intimidating or interfering with an employee’s right to take leave, or once he or she is on leave, from taking measure to encourage an employee to waive his or her right to take leave.
“They have to be hands off; they cannot deter an employee’s rights to exercise that leave,” said Stuart Higgins, a West Des Moines attorney who represents employees in FMLA cases.
Employers also cannot make hints or take any action that discourages an employee from taking leave. The U.S. District Court in Iowa ruled on such a case in 2009 when an employee sued her former employer for allegedly interfering with her rights under FMLA and for retaliation against her in trying to take leave under the federal act.
District Court Judge Mark Bennett wrote: “Interference includes ‘not only refusing to authorize FMLA leave, but discouraging an employee from using such leave. It would also include manipulation by a covered employer to avoid responsibilities.’ An employer’s action that deters an employee from participating in protected activities constitutes an ‘interference’ or ‘restraint’ of the employee’s exercise of his rights.”
Once a Foster Group employee has been approved for paid leave, company officials are hands off.
“We don’t restrict what they’re doing on the outside as far as their time,” Carlson said.
He said the company is flexible in working with employees who decide to modify their leave and return to work sooner than the 12-week period.
According to federal law, it’s also a violation for an employer to use FMLA against an employee. For example, FMLA cannot be counted against the employee under a “no-fault” attendance policy.
Higgins said employers also run into possible violations when employees are in a position in which their salary or an evaluation is based on production. If the employee is on FMLA, it’s difficult for them to meet those numbers. The employer then needs to grade the employee on a different rubric or runs the risk of a violation.
“They have to create an argument that they’re not retaliating against the employee,” he said.
Employees who feel as though their FMLA rights have been violated can file a complaint with the labor department. The department will investigate the claim and may decide to pursue legal action against the employer, which could result in a monetary judgment that would give the proceeds to the employee.
- Determine what kind of affect the leave will have on business
When an employee at Foster Group takes leave, the company uses other employees or interns to cover the job duties, Carlson said.
“We’ve had maternity leave come up in areas of our business where we have multiple people in those positions, so most of the time we’re covering that within the internal capacity we have,” he said.
For those companies that aren’t required to provide paid leave and can’t because it’s too much strain on the pocketbook, the U.S. Small Business Administration suggests they still find a way to accommodate employees. An alternative would be to allow new parents to work from home or part time during the first few weeks of parenthood.
Once an employee has notified his or her employer they will be gone, the employer should make a plan to cover the employee’s work. The business administration recommends employers seek other employees who want to take on more responsibilities — just plan to return the responsibilities to the original employee when he or she returns so there is no FMLA violation. Employees also should be cross trained in certain key tasks to provide coverage in absence of other employees.
The business administration also says independent contractors can be an option to ensure a business has coverage. Such contractors specialize in quickly learning the job and filling in when necessary.
Because of its size and the number of employees who request leave each year, the Waukee School District has a pool of substitute classroom teachers, nurses, secretarial employees and others if needed, Welker said. When possible, other teachers (in the case of physical education) or custodians will cover responsibilities if a teacher or worker is absent.
- Decide what changes you can make to become a choice employer
Companies that fall under the 50 employee mark are not required by law to offer any sort of excused leave or paid leave to their employees under FMLA; however, many of those companies still offer some type of leave for their employees.
According to the U.S. Small Business Administration, providing maternity and medical leave is a smart option for small businesses. It’s been proven to improve workers’ lives without placing an undue burden on the employer, and 90 percent of workers return to their jobs after FMLA leave, according to a labor department survey.
The Foster Group company offers up to 12 weeks of an excused leave of absence, during which the employee would fall under the company’s short-term disability plan; or time off through the company’s paid-time off policy, which allows the employee to accrue up to six weeks a year of paid time — three weeks per each half of the year, Carlson said.
Childbirth falls under the short-term disability portion, which would provide the employee with four weeks of paid leave. The employee could potentially use their six weeks of paid time if the baby were born in the latter half of the year, for a total of 10 paid weeks. It’s rare an employee would do this, though, Carlson said.
“Most will not use all of their free time, and they’ll manage some of it for once the baby is born in case the baby is sick, they’re sick, anybody is sick. Then they have time off,” he said.
Carlson said some fathers have used paid time away from work, but none have been gone longer than two weeks. Fathers would be eligible to take time off under the paid-time off policy.
Any leave policy needs to be in writing and included in the employee handbook and terms of employment, and applied consistently.
Keller Williams Realty in West Des Moines employs seven and has only had one employee request leave in the five years the company has been in central Iowa, said April Darling, market center administrator for the Greater Des Moines area. The company doesn’t have a set leave policy and would review requests on a case-by-case basis, she said.
“We haven’t had a need for it yet,” Darling said.
The company recently gave an employee a fully paid 12-week leave, which was based on FMLA guidelines. Work duties were shuffled within the office to cover the employee’s work while she was gone, Darling said.
Businesses and public entities also are not required to provide excused leave to an employee if he or she has not been with the company for at least 12 months. These situations are left to the discretion of the employer, which is the case with the Waukee School District.
Welker, the human resources director, said the school district had an employee who had worked there for nine months and had an outstanding word record. The individual was injured in a car wreck and needed three weeks to recover. When the person returned to work, he was unable to lift until fully recovered. The person ended up needing surgery to repair the injury, and rehabilitation was expected to take six months.
Welker said school district officials considered the employee’s work record and how long it would take to fill the position when considering whether to give him leave and let him return to his former job.
“Giving someone another six or eight weeks isn’t always a bad thing,” he said. “Federal law says we can (dismiss him), but we have an employee who for nine months is outstanding. We try to treat people with the respect and dignity they need and let federal law be our guide with what minimum standards we have to apply, but that doesn’t mean we follow the minimum standards to the letter.”
The employee was dismissed while recovery took place but then rehired for an identical position but at a different facility once he recovered and could return.
Employees’ rights and obligations
Employees who are eligible for the Family and Medical Leave Act also have the responsibility to learn about their rights and obligations, and to follow the terms of their company’s policy when they are considering whether to take an excused leave from work.
Iowa Legal Aid says the most important thing an employee should do is to be informed: to review their employer’s leave policy and to become familiar with the requirements of FMLA.
Employees should request leave in writing and cite that it is being requested under FMLA. They should keep copies of any documents they provide to their employer.
According to the U.S. Department of Labor, employees must provide information for the employer to determine whether the leave falls under the federal act.
In most cases, employees will need to request leave 30 days in advance in foreseeable situations such as childbirth or planned surgeries. When leave is not foreseeable, the employee must notify their employer as soon as possible. Employees may be asked to provide certification in support of the leave from a healthcare provider. The employer may require a second or third opinion at their own expense. This could be a copy of a birth certificate, adoption decree or foster child placement order; or a letter from a healthcare provider explaining the illness.
Employees may also be asked to undergo periodic assessments of the health condition that has required them to take leave and prove reports on when they may be able to return to work.
There are also times when an employee may request intermittent leave or a reduced schedule, meaning he or she takes leave in blocks of time or reduces the amount of work time in a day or week for a qualifying reason. If the leave is planned for medical treatment, the employee must make reasonable effort to schedule treatments so they do not “unduly disrupt the employer’s operations,” according to FMLA.
Stuart Higgins, a West Des Moines attorney who represents employees in FMLA cases, said the employee has a responsibility to stay in touch with their employer during leave and to track their leave time, especially in cases when intermittent leave has been granted.
“Where problems arise is if an employee is taking intermittent leave and they’re not keeping track of their time and how much time they’ve taken and how much is left on the FMLA,” he said. “It’s incumbent upon both to keep track of the time and what the expectations are. It’s not unreasonable for an employer to ask for updates, particularly on intermittent leave.”
Some companies require the employee to use accrued paid leave such as sick days or vacation to cover the FMLA leave period. These terms should be outlined in the company’s leave policy.
Above all, Iowa Legal Aid says employees have a responsibility to ensure their rights are upheld. Those who think they have been violated can file a complaint with the labor department. The department will investigate and could decide to pursue legal action against the employer.
If an employee does not want to file a complaint with the labor department or the department decides not to pursue legal action, the employee can file a lawsuit on his or her own in state or federal court, according to Iowa Legal Aid. The lawsuit can ask the employer for monetary damages, or for the employer to do something such as return the employee’s job or pay the employee’s legal bills.
All complaints must be filed within two years of the violation.