Complying with the Family and Medical Leave Act.

Most associations are aware that the Family and Medical Leave Act of 1993 allows eligible employees to take time off work to care for themselves and their families. Employers that are covered by FMLA must provide unpaid leave time and continue to provide health benefits to employees on FMLA leave. Upon the employee's return to work, the association must place the employee in the same job or in an equivalent position. Despite its laudable intentions, FMLA has become another tool that chronically absent or otherwise poorly performing employees use as the basis of claims against their employers post-termination. In this article, Christine N. Kearns addresses what associations need to be aware of to avoid such claims and to respond to them if they do occur.

The Family and Medical Leave Act of 1993 (FMLA) allows employees to take up to 12 weeks of unpaid leave per year to 1) care for a newborn or newly adopted child; 2) care for a spouse, parent, or child with a serious health condition; or 3) recover from serious health conditions that have made them unable to perform the essential functions of their jobs.

Five issues regarding the act have particular relevance for associations.

Scope of the law

Not all employers must comply with the act. To be covered by its regulations, employers must have 50 or more employees on the payroll each working day for at least 20 weeks during the current or preceding calendar year. This includes employees on leave, those who work part time, and those at different work sites that are no more than 75 miles apart.

Covered employers need only provide FMLA leave to "eligible employees": that is, those who have worked for the employer for at least 12 months and at least 1,250 hours during the previous year. This latter threshold underscores the importance of keeping precise employee time records. Unlike most other federal employment statutes, FMLA allows for individual liability--the unaware or uninformed supervisor, as well as the association itself, can be subject to such claims.

Giving notice

Employees cannot simply take leave at will and later claim it as part of their FMLA allotment. For planned absences, such as the birth of a child or a scheduled medical event, employees must give 30 days advance notice. If advance notice is not feasible due to the nature of the health condition, the employee must give notice as soon as possible, including enough information for the employer to know that the leave is for the employee's own serious health condition or to care for a family member.

The employer has a responsibility to inform employees of their FMLA entitlement and must include in the organization's employee handbook a specific description of the rights and responsibilities associated with the act. Notice can also be provided by posting a bulletin in an employee common area. Employers are not required to notify individual employees when leave will count against the 12-week allotment, although doing so may be helpful.

Defining "serious health conditions"

A significant area of controversy surrounding FMLA--and the subject of many recent lawsuits--involves the qualifying of medical conditions. The statute defines serious health condition as "an illness, injury, impairment, or physical or mental condition" that involves inpatient care or "continuing treatment by a health care provider." Further, it must be an illness or injury that 1) involves an overnight stay at a hospital, hospice, or residential medical care facility; 2) causes more than three consecutive days of incapacity and at least two instances of treatment by a health care provider; 3) causes more than three consecutive days of incapacity, one treatment by a health care provider, and a regimen of continuing treatment; or 4) any period of incapacity for pregnancy or prenatal care, a chronic serious health condition, a permanent long-term serious health condition, receipt of medical treatment for restorative surgery, or a condition that will likely result in a period of incapacity of more than three days without treatment. While conditions such as flu, upset stomach, and headaches other than migraines are generally excluded, even the flu has been found, under certain circumstances, to be a serious health condition. Because these definitions are imprecise, FMLA is subject to abuse by employees with chronic attendance problems unrelated to health.

Employers can combat this potential problem by requiring medical certification for any medical leave request. Employers are entitled to a certification signed by the employee's health provider with information including the nature of the health condition, medical facts supporting the certification, expected duration of the condition, and a statement that the employee is unable to perform the essential functions of the job. An employee may be fired for an absence if he or she fails to provide certification within 15 days of a request. An employer may, at its own expense, request a second opinion. If it conflicts with the first, the employer may, again at its own expense, seek a third and final opinion from a mutually acceptable health provider.

Returning to work

Associations have certain rights and responsibilities when an employee returns from FMLA medical leave.

* Before an employee returns to work, employers should request a fitness-for-duty certification, which helps ensure that employers do not place an employee back into a job that he or she is unable to do.

* If the employee claims that he or she is still unable to work and has remaining FMLA leave, the employer has the right to request a new medical certification.

* When an employee returns to work from FMLA leave, the employer must either reinstate the employee in the same job or in a position with equivalent terms, benefits, and conditions of employment. A limited exception exempts the employer from holding jobs open for employees in the highest-paid 10 percent of staff if holding the job open would cause substantial economic harm.

* If employees fail to return from leave when scheduled, employers may discipline them as they would any other employee for absenteeism, as long as the same procedures and policies are applied.

Protecting against lawsuits

FMLA allows employees to sue employers that deny FMLA rights or retaliate against employees for exercising those rights. To minimize risk, first keep time records for all employees so that you know who is eligible for leave or has leave time remaining. Review these records before taking action against an employee for absenteeism. Second, if you suspect that a serious health condition may be the reason for an absence, consult the employee. Third, provide notice to employees that they are entitled to FMLA leave and ask employees who request leave if they intend to use their FMLA allotment for their absences. Keep records of those communications. Fourth, once it is clear that an employee intends to use FMLA leave, request medical certification.

Apart from FMLA, associations must always document the reasons for disciplining and terminating employees. A well-documented basis for adverse action, including notice to the employee, is the best defense to a claim that the action was retaliatory. Finally, educate your supervisors, managers, and human resources personnel on employee rights under FMLA and the importance of record keeping. Their proper handling of medical leave issues will not only avoid their individual liability and ensure the association's compliance with FMLA, it will also promote a work place founded on respect and dignity for all employees.

Christine N. Kearns is a partner and co-head of the Human Resources Practice Group and Jerald A. Jacobs is a partner/n the Nonprofit Organizations Practice at Shaw Pittman, Washington, D.C Jacobs edits this column and is general counsel to ASAE.