Archive for October, 2018

What? Intermittent Leave or Reduced Schedule Leave….Part 1

We have discussed for what reasons an eligible employee may take leave and for how long, but we have yet to look at how an employee may take FMLA leave. I know what you’re thinking, what kind of question is that? Doesn’t the employee just not show up for work? And the answer to that is one lawyers love to give and everyone else in the world hates: it depends.

(a)  Definition. FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee’s schedule for a period of time, normally from full-time to part-time.

29 CFR § 825.202(a)

That’s right, in addition to taking leave for a continuous block of time, there are two other types of leave under FMLA, intermittent or reduced schedule. However, an eligible employee is not always entitled to intermittent and reduced schedule leave. Sometimes employer approval is required whereas other times it is not. Let’s look at the first possible reason an eligible employee may take intermittent or reduced schedule leave under FMLA.

(b) Medical necessity. For intermittent leave or leave on a reduced leave schedule taken because of one’s own serious health condition, to care for a spouse, parent, son, or daughter with a serious health condition, or to care for a covered servicemember with a serious injury or illness, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. The treatment regimen and other information described in the certification of a serious health condition and in the certification of a serious injury or illness, if required by the employer, addresses the medical necessity of intermittent leave or leave on a reduced leave schedule. See §§ 825.306, 825.310. Leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned and/or unanticipated medical treatment of a serious health condition or of a covered servicemember’s serious injury or illness, or for recovery from treatment or recovery from a serious health condition or a covered servicemember’s serious injury or illness. It may also be taken to provide care or psychological comfort to a covered family member with a serious health condition or a covered servicemember with a serious injury or illness.

29 CFR § 825.202(b)

This is one of the situations where the employer really has no say in the matter. If the employee has a serious health condition, or needs to care for family member or a covered servicemember, then the employee may be entitled to intermittent or reduced schedule leave. Whether or not an eligible employee would need such leave is determined by medical necessity, which in turn is determined by a healthcare provider. Common reasons for reduced intermittent or reduced schedule leave are for medical treatment or to provide physical and psychological care to family members or covered servicemembers.

Why? Care for a Parent with a Serious Health Condition

I’m running out of Jerrod posts.  I may actually have to start working on this thing again.  And that is a bummer.

So after a quick recess to discuss how long employees may take leave, we are back on the issue of reasons why eligible employees may be entitled to leave. This time we are discussing leave to care for a parent.

(a) General rule. An eligible employee is entitled to FMLA leave if needed to care for the employee’s parent with a serious health condition. Care for parents-in-law is not covered by the FMLA. See § 825.122(c) for definition of parent.

29 CFR § 825.201(a)

Well that’s pretty explicit, an eligible employee may take FMLA leave to care for a parent with a serious health condition, but not for an in-law. Previous posts such as the one here have discussed what qualifies as a serious health condition, but let’s make sure we know what a parent is. I know, questions you never thought you would actually need to ask, but hey that’s the law for you.

(c) Parent. Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined in paragraph (d) of this section. This term does not include parents “in law.”

29 CFR § 825.122(c)

Not too complicated, a parent is generally what someone would expect a parent to be. But there is that crazy Latin phrase that has popped up a couple of other times in this blog: “in loco parentis.” As a reminder for those who don’t read and write a dead language, this translates to “in the place of a parent.” FMLA gives us the following definition:

(3) Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

29 CFR § 825.122(d)

Therefore, someone is considered a parent under FMLA if that person cared for and financially supported the eligible employee on a day-to-day basis when the employee was a child.

Caring for a parent is one of those things that falls within the 12 workweeks allotted for leave under 29 CFR § 825.200(a)(3), but don’t forget that those 12 workweeks must split between all of the reasons that an eligible employee may be entitled to leave under § 825.200(a). To add some additional confusion to the mix, if an employee and the employee’s spouse work for the same employer and are both entitled to FMLA leave, those 12 workweeks may have to be split between them.

(b) Same employer limitation. Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken to care for the employee’s parent with a serious health condition, for the birth of the employee’s son or daughter or to care for the child after the birth, or for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 12 weeks of FMLA leave. Where the spouses both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, the spouses would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes. For example, if each spouse took six weeks of leave to care for a parent, each could use an additional six weeks due to his or her own serious health condition or to care for a child with a serious health condition. See also § 825.127(d).

29 CFR 825.201(b)

The last couple sentences are really important because it makes it clear that even though spouse employees may have to share the 12 weeks for certain leave related reasons, such as caring for children or parents, other leave related reasons aren’t shared between the spouses. Instead, these are counted individually based on that spouse’s own amount of time actually taken off, rather than the time taken off by the other employed spouse.

How much? Amount of Leave an Eligible Employee May Take….Part 3

So because Jarrod has been writing these and because I was not paying attention I published part 3 of this series as part 2.  So this one, which is labeled part 3 should really be part 2 . . . OK now even I’m confused, but if you are following these closely they are going to look out of order.  Don’t worry, its all here.  Steve.

The employer must choose one of the 29 CFR § 825.200(b) options to apply to all employees of the business, and may only change options after providing all of its employees 60-day notice. That is, unless the employer is a multi-State employer in a State which has a family and medical leave statue, then in those States, the employer must comply with the State requirement and may choose any of the other options to apply to the rest of the employees in other states. Employers must also make sure that any change does not deprive an eligible employee of its full 12 weeks of leave.

(1) Employers will be allowed to choose any one of the alternatives in paragraph (b) of this section for the leave entitlements described in paragraph (a) of this section provided the alternative chosen is applied consistently and uniformly to all employees. An employer wishing to change to another alternative is required to give at least 60 days notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. Under no circumstances may a new method be implemented in order to avoid the Act’s leave requirements.

(2) An exception to this required uniformity would apply in the case of a multi-State employer who has eligible employees in a State which has a family and medical leave statute. The State may require a single method of determining the period during which use of the leave entitlement is measured. This method may conflict with the method chosen by the employer to determine any 12 months for purposes of the Federal statute. The employer may comply with the State provision for all employees employed within that State, and uniformly use another method provided by this regulation for the leave entitlements described in paragraph (a) for all other employees.

29 CFR § 825.200(d)

But what if an employer fails to choose one of the options listed?

(e) If an employer fails to select one of the options in paragraph (b) of this section for measuring the 12-month period for the leave entitlements described in paragraph (a), the option that provides the most beneficial outcome for the employee will be used. The employer may subsequently select an option only by providing the 60-day notice to all employees of the option the employer intends to implement. During the running of the 60-day period any other employee who needs FMLA leave may use the option providing the most beneficial outcome to that employee. At the conclusion of the 60-day period the employer may implement the selected option.

29 CFR § 825.200(e)

So basically, if the employer doesn’t choose an option, the employee, individually, gets to use the most beneficial option for them. This can be confusing because an employer can end up with a lot of different 12-month periods calculated in different ways. Thankfully, an employer can remedy this for all future employees by providing a 60-day notice to all employees of the employer’s option. However, during that 60-day period any eligible employees taking leave may still use the option most beneficial to them.