Archive for the 'FMLA' Category

Why? A Serious Health Condition under the FMLA – Part 8.

OK, this is it.  We are almost done with the definition of a serious health condition.  I’m serious.  Let’s deal with chronic conditions.  You know, the sorts of health conditions a person might get that just does not go away.  Like asthma or diabetes or epilepsy.  How do these kinds of conditions fit into the definition of a serious health condition?

Let’s start with the definition again:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

And back to §115 we go.

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

* * *

(c) Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 CFR §825.115(c).

So we have three things we need for a condition to be “chronic” and we will start from the bottom and work our way up.  First, the condition may cause “episodic” incapacity.  You know, once in a while.  Like when the weather is bad (or really good he said dripping with sarcasm) and the employee gets an asthma attack.  The condition has to continue over an extended period of time – again, like asthma.  It doesn’t just go away with treatment. And finally, the condition requires periodic visits to the doctor.  And here is where it gets complicated.  You have to see the doctor at least twice per year.    What is twice per year?  According to Lusk v. Virginia Panel Corporation, Civil Action No. 5:13cvO79 (W.D. Vir. 2014), twice per year means that the employee saw a doctor at least twice in the year preceding her need for leave.

Lusk was not treated at all for her mental health condition in the year preceding her alleged FMLA leave on January 16, 2013, and neither did she have a certification from her doctor that she suffered from a chronic condition.  In short, given the evidence addressed at summary judgment, the court cannot conclude as a matter of law that plaintiff Lusk falls within this FMLA category.

So that isn’t a “chronic condition” under the FMLA.  And remember, the general doctor’s visit and three day incapacity rules don’t apply to chronic conditions just like they don’t apply to pregnancy.

(f) Absences attributable to incapacity under paragraph (b) or (c) of this section qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

29 CFR §825.115(f).

Let’s get a couple of more things out of the way.  You can also get time off for a “permanent or long-term condition,” which is different from a chronic condition and for “conditions requiring multiple treatments.”

(d) Permanent or long-term conditions. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

(e) Conditions requiring multiple treatments. Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for:

(1) Restorative surgery after an accident or other injury; or

(2) A condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

29 CFR §825.115(d) & (e).

Why? A Serious Health Condition under the FMLA – Part 7.

We are still in section 115 of the Regulations but now we are going to talk about treatment as it relates to a pregnancy and “chronic conditions.”  You see, in addition to your regular old serious health condition that we have been discussing in the last six – yes, six – posts, an employee may also be eligible for leave for treatment for pregnancy or a chronic condition.  We will focus on pregnancy for this post and get to chronic conditions with the next one.

As has become our habit, and in case you are not reading every post on this captivating topic (and if you are not, shame on you), let’s recap:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

Let’s start with pregnancy.  The Regulations say:

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

* * *

(b) Pregnancy or prenatal care. Any period of incapacity due to pregnancy, or for prenatal care. See also §825.120.

29 CFR §825.115(b).

Ok, so what does §825.120 say?  We are going to skip most of this, because we will deal with it when we come to that Regulation, but as it pertains to the mother giving birth:

(a) General rules. Eligible employees are entitled to FMLA leave for pregnancy or birth of a child as follows:

* * *

(4) The expectant mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. The mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days. The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.

29 CFR §825.120(a)(4).

So mom gets time off for any incapacity due to pregnancy.  The Reg goes on to say that the mother gets time off before the birth for “prenatal care or if her condition makes her unable to work.”  Say, for example, the doctor puts her on bed rest before the birth.  Or for prenatal care, like for doctor’s appointments before the birth.  She also gets time off for her own serious health condition following the birth of the child – say, complications from a difficult delivery or to recover after a C-section. And one more thing to keep in mind here, they have to have a doctor’s visit and the three day incapacity rules don’t apply here:  “The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.”  Out sick due to morning sickness – covered.  Don’t believe me?  Let’s go back to §115.

(f) Absences attributable to incapacity under paragraph (b) or (c) of this section qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

29 CFR §825.115(f).

 

Why? A Serious Health Condition under the FMLA – Part 6.

Yes, we are still talking about what a serious health condition is.  But now we are going to talk about a “regimen of continuing treatment.”

As has become our habit, and in case you are not reading every post on this captivating topic (and if you are not, shame on you), let’s recap:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

But this time, instead of the two treatments thing, we are going to discuss the “regimen of continuing treatment.”

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So just what is this “regimen of continuing treatment”?  Pretty simple actually:

* * *

A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

29 CFR §825.113(c).

So it is prescription medication, or therapy or something you need the health care provider in order to get it, and not just drink plenty of fluids and take an aspirin.  Simple enough.

Next time, pregnancy.

Why? A Serious Health Condition under the FMLA – Part 5.

Back to a serious health condition and what it means.  As we always do, we will start out with a little refresher:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

And of course we are talking about the continuing treatments part of that definition.  Remember, last time we left off with when the second of the two treatments have to take place.

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So the second treatment has to take place within 30 days of the first day of incapacity.  I got sick on Monday the 1st.  Have to have two treatments by the 30th.  But who decides?  Do I just get to decide to go back to the doctor a second time and, voila, I have a serious health condition?  Nope, the doctor decides.

Continuing treatment by a health care provider means any one of the following:

* * *

(iv) Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.

29 CFR §825.102.

OK, so the doctor decides.  But is it a serious health condition if the second treatment does not occur until after the employee is no longer sick?  Well, that might depend on where you live.  In Jones v. Denver Public Schools, 427 F.3d 1315 (10th Cir. 2005), the Court said the health condition must be sufficiently serious that it entails an absence of more than three consecutive calendar days during which the employee obtained treatment by a health care provider at least two times.  But in Summerville v. Esco Company, 52 F. Supp. 2d 804 (W.D. Mich. 1999), the court held “Rather, the regulation by its plain language merely requires two or more treatments, without distinguishing between treatments occurring during or after the initial period of incapacity.”

Clear as mud, right?  I’m going with the Summerville Court, but I live and practice (mostly) in Michigan.  You might want to talk to your labor lawyer before you decide to tell an employee they are not covered by the FMLA because they did not have two treatments while they were sick.

Oh, and one more thing – that whole 30 day thing for the second doctor’s visit?  Does not apply if there are “extenuating circumstances.”  What is an extenuating circumstance?

(5) The term extenuating circumstances in paragraph (a)(1) of this section means circumstances beyond the employee’s control that prevent the follow-up visit from occurring as planned by the health care provider. Whether a given set of circumstances are extenuating depends on the facts. For example, extenuating circumstances exist if a health care provider determines that a second in-person visit is needed within the 30-day period, but the health care provider does not have any available appointments during that time period.

29 CFR .§825.115(a)(5).

See you next time when we will talk about a “regimen of continuing treatment.”

 

Why? A Serious Health Condition under the FMLA – Part 4.

Yes, yes, I know we are still talking about “serious health condition” and we have been for the last several posts.  But this is important stuff.  Most of your FMLA leaves are going to be for a serious health condition, either the employee’s or a family member’s.  So this might take a post or two more.

Let’s refresh:

According to the Regulations:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

So last time we talked about the “three consecutive days” thing.  You remember:

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So we have that down, right?  A period of incapacity that lasts more than three consecutive days.  But that is not it.  The section also says:  “that also involves”.

So in addition to the three consecutive days, you need “continuing treatment by a health care provider”.

The Regulation gives you basically two different situations and says that means:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

Id.

Well, let’s break that down.  We will start with number 1, that makes sense.

You can have “treatment two or more times”.  OK, easy enough, you have to be treated by the “health care provider” at least twice.   Hold it, what does “treatment” mean?  Funny you should ask, because there is a definition:

Continuing treatment by a health care provider means any one of the following:

* * *

(iii) The requirement in paragraphs (i) and (ii) of this definition for treatment by a health care provider means an in-person visit to a health care provider. The first in-person treatment visit must take place within seven days of the first day of incapacity.

29 CFR §825.102.

OK, so treatment means an in-person visit with a health care provider.  But it must also mean more than that, right?  Yes it does.  Treatment also means:

(c) The term treatment includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

29 CFR §825.113(c).

Man, we are all over these Regulations just to get to one definition.  So, treatment means an in-person visit with a health care provider “to determine if a serious health condition exists and evaluations of the condition”.

Now let’s touch on that two or more times thing.  First, as you can see, the “first in-person treatment visit must take place within seven days of the first day of incapacity.”  So I got sick on Monday, as a threshold issue I need to see the doctor within seven days of Monday.

OK, I think that is enough for today.  It’s enough for me anyway.  We will talk about that second visit next time.

Why? A Serious Health Condition under the FMLA – Part 3.

Remember how short the last post was?  Not this one.

So let’s go back.  According to the Regulations:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

Last time we talked about “inpatient care”.  This time we are going to talk about “continuing treatment”.

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So the first thing we need for a serious health condition involving “continuing treatment” is a period of incapacity and treatment lasting “more than three consecutive full calendar days”.  So we start with incapacity.  Remember incapacity?

(b) The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

29 CFR §825.113(b).

And you didn’t even remind me.  So we have to have “incapacity”, which means the employee basically can’t do what they would normally do during the day, and it has to last for more than three consecutive, full calendar days.  A couple of things to point out there:

The incapacity has to last for “more than three consecutive days.”  Out sick Monday, Wednesday and Thursday does not count.  Not consecutive days.  Second thing you need to note is that it is “full calendar days”.  If the employee went home early on Friday, was still sick Saturday and Sunday and comes back to work Monday, that is not a serious health condition.  Not because of the Saturday and Sunday – if the employee can’t do his normal daily activities, those days count (remember, it is “calendar” not “work” days).  It does not count because that is not three “full” days.  The employee worked part of Friday, so he was clearly not incapacitated for the full day Friday.

We will get into this more next time.

Why? A Serious Health Condition under the FMLA – Part 2.

Boy, this post is going to be really short.  Remember last time when I told you that the definition of a serious health condition included:

. . . an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 . . . .

29 CFR §825.113(a).

Of course you remember.  So, what does “inpatient care” mean?  Simple:

Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in §825.113(b), or any subsequent treatment in connection with such inpatient care.

29 CFR §825.114.

If you stay overnight in a hospital, or a hospice or a residential care facility, that is inpatient care.

That’s it.  Now I could stop there, but what kind of a lawyer would I be if I made it that simple? So let’s ask a question – what is an “overnight stay”?  Do we start the clock when the employee gets to the hospital or when they are actually admitted?  How long does the employee need to stay in the hospital for it to be “overnight”?  Will midnight to 5 a.m. do it?  11 p.m. to 7 a.m.? Something else?

According to one court, the 3rd Circuit in Bonkowski v. Oberg Indus., 787 F.3d 190 (3rd Cir. 2015), an “overnight stay” is one that lasts from one day to the next and lasts at least eight hours, as measured by the patient’s admission and discharge from the hospital.  Got that, starts in one day and ends in the next (or the one after that and so on) and is at least eight hours long.  Where do they come up with this stuff?  Beats me.

Why? A Serious Health Condition under the FMLA – Part 1.

Given what we covered last time, it should come as no surprise to any of you that we are now going to dig into the reasons for leave a bit.  What we should do is start with the birth of a child, but we are not going to.  Why, you ask?  I will tell you . . . because that is not the order the DOL wrote the regulations.  They start with serious health condition, so we will too.

So as you will recall, an eligible employee of a covered employer is entitled to take FMLA leave if the employee has a serious health condition or if the employee needs to care for a spouse, child or parent with a serious health condition.  That begs the question: What is a serious health condition?

According to the regulations:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

Ok, so a serious health condition is an “illness, injury, impairment or physical or mental condition.”  That is part 1.  And it involves either “inpatient care” or “continuing treatment” by a “health care provider.”   That is part 2.

So before we get to the definition of those terms, as we will obviously have to do, we have some other terms, and some caveats and some limiters.  No kidding!

First, new definition – what does incapacity mean?  Who cares, you say?  I don’t see incapacity anywhere in that definition you just gave us, you say.  True, you don’t, but it is going to be important when we get to the definition of “continuing treatment” so of course the DOL put it here.

(b) The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

29 CFR §825.113(b).

Now that is important, but it is important later, so we will come back to it.  Remind me, will you?  Now for the caveats and limiters.

(c) The term treatment includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

29 CFR §825.113(c)

First thing you notice is we are talking about treatment again.  So treatment includes examinations to find out if you have a serious health condition and to evaluate the condition.  It is not a routine physical or other preventative sort of visits to the doctor.  A regimen of “continuing treatment” is prescription medication or therapy, but it is not taking over-the-counter medication or, for example, “getting plenty of rest and drinking plenty of fluids.”  So taking a couple of aspirins is not continuing treatment even if the doctor tells you to do it.  Again, that is going to be important so we will come back to it.

Finally, cosmetic treatments are not serious health conditions.

(d) Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of this section are met.

29 CFR §825.113(b).

So basic cosmetic treatments are not serious health conditions . . . unless (hey, that is a caveat to a caveat, leave it to the DOL!) “inpatient hospital care is required or unless complications develop.”  Headaches are not serious health conditions unless they are migraines (another caveat to a caveat).  And finally, mental illness or allergies are serious health conditions if the conditions contained in section 113 are met.  OK, I get that, but who bunches mental illness and allergies together like they are the same thing?  Only the DOL.

Why? Qualifying Reasons for Leave, the General Rule.

Over the last several posts we have spent a lot of time on the Who and even the What of the FMLA.  Now let’s get into Why.  Why can an employee take leave?  Pretty simple and straightforward to start with.

If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122)

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

That’s it.  If an eligible employee has a child and to care for that child; if an eligible employee adopts a child or a child is placed with them for foster care; if an eligible employee has a spouse, child or parent with a serious health condition; if an eligible employee has a serious health condition; if an eligible employee’s spouse, child or parent is a member of the military on covered active duty (or is called to covered active duty) and has a qualifying exigency; or if an eligible employee needs to care for a covered service member who has a serious injury or illness (as defined in the Regs) and the employee is the spouse, child, parent or “next of kin” of the covered service member.

Simple.  And a couple more things to remember:  You have to apply these rights equally, for example, both fathers and mothers get time off to care for the birth of a child.

(b) Equal application. The right to take leave under FMLA applies equally to male and female employees. A father, as well as a mother, can take family leave for the birth, placement for adoption, or foster care of a child.

29 CFR §825.112(b).

Also, if an employee is not actively employed, say they are laid off, they are not eligible for leave until they are recalled.  But the minute they are recalled, they are entitled to FMLA if they otherwise are eligible and if the reason for the leave is a qualifying reason.

(c) Active employee. In situations where the employer/employee relationship has been interrupted, such as an employee who has been on layoff, the employee must be recalled or otherwise be re-employed before being eligible for FMLA leave. Under such circumstances, an eligible employee is immediately entitled to further FMLA leave for a qualifying reason.

29 CFR §825.112(c).

What does it all mean and who does it mean it for? An Eligible Employee under the FMLA, Part 4.

Last time we talked about the 50 employee within 75 mile test for eligibility under the FMLA.  We are going to talk about it again.  This time we are going to discuss how you determine if the employee who is requesting leave actually works within 75 miles of 49 other employees.  Let’s start with how we determine what the worksite is.  Some of this is just plain common sense and some of it probably does not apply to you, but the Department of Labor took the time to write these Regulations so we should probably at least take the time to read them.

Let’s start with the general rule:

(a) Generally, a worksite can refer to either a single location or a group of contiguous locations. Structures which form a campus or industrial park, or separate facilities in proximity with one another, may be considered a single site of employment. On the other hand, there may be several single sites of employment within a single building, such as an office building, if separate employers conduct activities within the building. For example, an office building with 50 different businesses as tenants will contain 50 sites of employment. The offices of each employer will be considered separate sites of employment for purposes of FMLA. An employee’s worksite under FMLA will ordinarily be the site the employee reports to or, if none, from which the employee’s work is assigned.

29 CFR §825.111(a).

So that makes sense, right?  A big building in New York or Chicago that has a bunch of tenants can be a worksite for all of those tenants.  It is really the last sentence of that section that matters, right?  “An employee’s worksite under FMLA will ordinarily be the site the employee reports to or, if none, from which the employee’s work is assigned.”  So what if we have a big campus with a bunch of buildings on it?  Well, that is a single site of employment too:

(1) Separate buildings or areas which are not directly connected or in immediate proximity are a single worksite if they are in reasonable geographic proximity, are used for the same purpose, and share the same staff and equipment. For example, if an employer manages a number of warehouses in a metropolitan area but regularly shifts or rotates the same employees from one building to another, the multiple warehouses would be a single worksite.

29 CFR §825.111(a)(1).

And that makes sense too, right?  But what if the employee does not have a fixed site of employment?  What if it is a salesperson or a truck driver?  We have a Regulation for that too:

(2) For employees with no fixed worksite, e.g., construction workers, transportation workers (e.g., truck drivers, seamen, pilots), salespersons, etc., the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. For example, if a construction company headquartered in New Jersey opened a construction site in Ohio, and set up a mobile trailer on the construction site as the company’s on-site office, the construction site in Ohio would be the worksite for any employees hired locally who report to the mobile trailer/company office daily for work assignments, etc. If that construction company also sent personnel such as job superintendents, foremen, engineers, an office manager, etc., from New Jersey to the job site in Ohio, those workers sent from New Jersey continue to have the headquarters in New Jersey as their worksite. The workers who have New Jersey as their worksite would not be counted in determining eligibility of employees whose home base is the Ohio worksite, but would be counted in determining eligibility of employees whose home base is New Jersey. For transportation employees, their worksite is the terminal to which they are assigned, report for work, depart, and return after completion of a work assignment. For example, an airline pilot may work for an airline with headquarters in New York, but the pilot regularly reports for duty and originates or begins flights from the company’s facilities located in an airport in Chicago and returns to Chicago at the completion of one or more flights to go off duty. The pilot’s worksite is the facility in Chicago. An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.

29 CFR §825.111(a)(2).

Now that section has a lot of stuff in it, so let’s break it down a bit.  First, if the employee does not have a fixed site, for example our truck driver, then their site of employment is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.”  Not necessarily the company headquarters then.

What about our salesperson?  Is home their worksite?  No, it is not.  According to this Regulation, “An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.”  And the same is true for people who work from home.

With all of that in mind, how do we measure the 75 miles?  As the crow flies?  Nope, not unless you are a crow (or you can’t drive to work).  It is highway miles, when you drive.

(b) The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation (e.g., airline miles).

29 CFR §825.111(b).

And the determination is made based on the number of employees that you have on the payroll, not by the number of employees that happen to be at work on the day the employee asks for leave.

(c) The determination of how many employees are employed within 75 miles of the worksite of an employee is based on the number of employees maintained on the payroll. Employees of educational institutions who are employed permanently or who are under contract are maintained on the payroll during any portion of the year when school is not in session.  See §825.105(c).

29 CFR §825.111(c).

And one last thing.  What about temps?  You know, co-employees?  What is their worksite?  Well, in that case the worksite is the primary employer’s site, not the secondary employer’s, but the employee counts for both employers for determining if they have 50 employees.

(3) For purposes of determining that employee’s eligibility, when an employee is jointly employed by two or more employers (see §825.106), the employee’s worksite is the primary employer’s office from which the employee is assigned or reports, unless the employee has physically worked for at least one year at a facility of a secondary employer, in which case the employee’s worksite is that location. The employee is also counted by the secondary employer to determine eligibility for the secondary employer’s full-time or permanent employees.

29 CFR §825.111(a)(3).

Well, that is enough of that.  Next time, why an employee can take a leave.

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