Archive for September, 2017

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.

What does it all mean and who does it mean it for? An Eligible Employee under the FMLA, Part 3.

So for the last couple of weeks we have talked about the 12 month and 1,250 hour rules to determine if an employee is eligible for leave.  Now let’s talk about the third and often overlooked eligibility requirement, the 50 employee test.  Remember:

(a) An eligible employee is an employee of a covered employer who:

(1) Has been employed by the employer for at least 12 months, and

(2) Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave (see §825.801 for special hours of service requirements for airline flight crew employees), and

(3) Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. See §825.105(b) regarding employees who work outside the U.S.

29 CFR §825.110(a).

(e) Whether 50 employees are employed within 75 miles to ascertain an employee’s eligibility for FMLA benefits is determined when the employee gives notice of the need for leave. Whether the leave is to be taken at one time or on an intermittent or reduced leave schedule basis, once an employee is determined eligible in response to that notice of the need for leave, the employee’s eligibility is not affected by any subsequent change in the number of employees employed at or within 75 miles of the employee’s worksite, for that specific notice of the need for leave. Similarly, an employer may not terminate employee leave that has already started if the employee count drops below 50. For example, if an employer employs 60 employees in August, but expects that the number of employees will drop to 40 in December, the employer must grant FMLA benefits to an otherwise eligible employee who gives notice of the need for leave in August for a period of leave to begin in December.

29 CFR §825.110(e).

So here, eligibility is determined at the time the employee gives notice of the need for the leave.  And again, if the employee is eligible when they give notice of the need for leave, they are eligible for the duration of the leave, even if the number of employees at a specific location changes.  Makes sense, right?  That keeps sneaky employers from transferring or laying off employees to avoid having to give someone leave.  Nobody would do that, right?  Similarly, you can’t stop a leave once it starts just because the number of employees within 75 miles drops below 50.  And again, remember all of this counting occurs when the employee “gives notice of the need for leave”.