March 2, 2020 | Business Plans
Though it has been in place for decades, the Family and Medical Leave Act still creates questions for employers and employees alike. For this reason, the Administrator of the Department of Labor’s Wage and Hour Division (WHD) periodically responds to new Family Medical Leave Act (FMLA) compliance questions. Below is a sampling of some recent questions they’ve answered, which could be helpful to business owners who may face similar situations.
Do School Meetings Qualify for FMLA Status?
A recent case considers whether an employee’s time away from work to attend regular meetings at the school of her special needs child qualifies as FMLA-sanctioned leave. These meetings’ purpose is for the parent to receive “updates [on the] children’s progress and areas of concern; review recommendations made by [the] children’s doctors; [and] review any new test results and recommendations for additional therapy.”
The employer granted leave under the FMLA for the employee to take her children to doctor visits but drew the line at also allowing leave for the school meetings.
In an earlier ruling, the WHD declared that an employee could take family medical leave to attend meetings regarding her mother. Citing that ruling, the WHD agreed with the petitioner in the current case that her school meetings do qualify for FMLA status.
Can You Extend FMLA Leave?
Sometimes employers wonder if they can provide a more generous leave than the norm. One employer asked if it was permitted to delay the start of the 12-week limit on unpaid, job-protected leave until employees have exhausted their accrued paid time off.
The WHD’s answer was a clear, “No.” While employers could adopt leave policies more generous than those required by the FMLA, the employer cannot designate more than 12 weeks of leave as FMLA-protected.
If an employee needs leave for FMLA-based reasons, he or she can’t take advantage of their employer’s paid leave policy first and then request 12 weeks of unpaid FMLA leave as well. The employer should be informed if the leave could qualify for an additional 12 weeks of FMLA-based leave.
Does Time Stand Still During FMLA Leave?
To discourage employee “unexcused” absences, an employer instituted a new attendance policy, which penalized employees for excessive tardiness or unexcused absences over a 12-month period.
However, this 12-month period is paused during FMLA leave. For example, if an employee began work on January 1, and took FMLA leave for the entire month of June, the conclusion of the 12-month period would be pushed back to February 1.
An employee asked if this violates one’s FMLA rights. The WHD responded that it didn’t based on their long standing position “that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment.”
When FMLA Status Can’t Impact Seniority Rights Accrual
This case involves an employee covered by a collective bargaining agreement (CBA) that stipulates that the time an employee is out on paid leave is still counted toward that employee’s accrual of seniority credit, which entitles them to certain benefits. However, under that same policy, unpaid FMLA leave doesn’t count towards seniority.
So what happens when paid leave and unpaid FMLA leave occur simultaneously? According to WHD, in this situation, the employee would get seniority credit for the portions of leave that was paid.
The WHD wrote, “When an employee takes FMLA leave that runs concurrently with CBA-protected accrued paid leave, the employee’s seniority status would be the same as it would if the employee took only CBA-protected accrued paid leave.”
As you can see, a number of issues may arise when employees seek leave. Always consult your employment law attorney when creating or updating an FMLA policy.