Stuff happens. In our office, there are countless ways life might come before work. Contrary to his own advice, Jordan might have another kid. Even worse, it could be Steve. Bobby might insist on padding his ego by hitting for all 36 teams at the golf tournament (and then take a mulligan for each one, just to save face.) Is soreness a serious health condition? We’ll explore that question and more as we dive into the Family Medical Leave Act (FMLA) through a 4-part series.
Part 1: Sharpen Your Spidey Senses
Choose your favorite Spiderman and sharpen your Spidey senses because our first post is about recognizing when an employee is entitled to FMLA leave. Whether you’re Tom Holland, Andrew Garfield, or Tobey McGuire, the safest rule of thumb is to suspect an employee’s absence falls under the FMLA, then investigate whether there is a reason it would not.
The purpose of the FMLA is to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It is important to recognize triggers for FMLA leave because failing to properly designate an employee’s absence as FMLA leave may entitle the employee to excessive leave. An employer’s ability to designate FMLA leave retroactively is limited, so it is important that schools exercise their authority to consistently designate leave in a contemporaneous manner. In other words, with great power comes great responsibility.
Basic Q&A on the FMLA
What is the technical definition of leave under the FMLA?
It’s the federal law entitling eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.
How much leave does the FMLA allow?
Generally, 12 workweeks in a 12-month period.
To whom does the FMLA apply?
It applies to eligible employees. For an employee to be eligible to take FMLA leave, the employee must:
Work for a covered employer (schools are covered employers).
Have worked a minimum of 1,250 hours during the 12 months prior to the start of leave.
Work at a location where the employer has 50 or more employees within 75 miles. The 50 or more employee count is determined based on the number of employees on payroll regardless of whether they are part-time, temporary, or seasonal employees.
Have worked for the employer for at least 12 months (the 12 months need not be consecutive).
What family and medical reasons trigger the right to FMLA leave?
The birth or adoption of a child.
An employee’s need to care for his or her spouse, child, or parent who has a serious health condition.
A serious health condition that makes the employee unable to perform the essential functions of his or her job.
Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”
Military caregiver leave: Up to 26 workweeks of leave during a 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin.
What is intermittent FMLA leave?
An employee may break his or her FMLA leave into segments. For example, planned medical treatments may qualify as FMLA leave. Similarly, an FMLA-qualifying reason may allow an employee to work a reduced schedule.
If an employee uses intermittent FMLA leave, the employee must work with his or her employer so as not to disrupt the employer’s operations.
Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement.
FMLA leave is unpaid, but what about health care benefits?
Central to the FMLA is its promise that an employer will maintain an employee’s benefits during the employee’s absence. Group health plan benefits are to remain on the same basis as coverage would have been provided if the employee had been continuously employed during the FMLA leave period. The employee is still responsible for any share of the health plan premium for which the employee was responsible prior to FMLA leave.
Digging Deeper
With your Spidey senses tingling, you have a sixth sense of how the FMLA could add an unpleasant plot twist to your administrative workday. Last for today is an overview of a few key terms and related concepts.
Covered Employers
Public and private elementary or secondary schools, no matter the size, are covered employers. Therefore, you must comply with FMLA notice and posting requirements.
Eligible Employees
Eligible employees must have worked 1,250 actual hours in the 12 months immediately preceding the leave. Paid or unpaid leave, including vacation, sick time, or FMLA leave, does not count toward this requirement. The employer, the school district, must have at least 50 employees within 75 miles of the employee’s work location. Lastly, the employee must have worked for the employer for at least 12 months, but the 12 months need not be consecutive.
Specified Family and Medical Reasons
Specified family and medical reasons typically involve a serious health condition. A serious health condition is:
A condition requiring an overnight stay in a hospital or other medical care facility.
A condition that incapacitates an employee or an employee’s family member for more than 3 consecutive days and includes ongoing medical treatment. Ongoing medical treatment could mean multiple appointments or a single appointment with follow up care, such as a prescription.
A chronic condition causing an employee or an employee’s family member occasional periods of incapacity and requiring treatment by a health care provider at least twice per year.
A condition related to pregnancy, including prenatal appointments, incapacity due to morning sickness, or medically required bedrest.
Mental health and substance abuse treatments may qualify, subject to the same definition as other health conditions.
What about the special military provisions?
A qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty”:
Occurs when the military member is actively deployed to a foreign country.
Such exigencies include the military member’s short-notice deployment, caring for the child of the military member, making financial or legal arrangements for the military member, attending counseling, spending time with the military member during temporary rest and recuperation, participating in post-deployment activities, providing care for the military member’s parents, or any other exigency agreed upon by the employee and employer.
A note on military caregiver leave:
Is the exception to the typical 12-week FMLA leave limit. FMLA leave to care for a covered servicemember, including a covered veteran, extends to up to 26 weeks.
Is available for the servicemember’s spouse, son, daughter, parent, or next of kin.
Applies to serious injuries or illness incurred while the servicemember was on active duty or aggravated by service on active duty.
Conclusion
We hope this primer is a helpful introduction to FMLA basics. Whether an employee is eligible for FMLA leave is sometimes complicated, so we’ll address some more complex scenarios and school specific nuances over the next parts of this series. In the meantime, please don’t hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send us all an email at ksb@ksbschoollaw.com. Until then . . .
Part-2 Teaser
With your FMLA senses tingling, next week will be about employer notice obligations. Then we’ll lighten up a bit with some hypotheticals before explaining a few FMLA rules unique to schools.