Editor’s note: Joe Austin practices in the Ward and Smith law firm’s Labor and Employment Group. TechLaw is a regular feature in WRAL Local Tech Wire.

RALEIGH, N.C. – The Family and Medical Leave Act of 1993 ("FMLA") persistently challenges employers as employees request time off for various family-related matters. Even though the FMLA is now over 10 years old, many employers are confused about to whom it applies, under what circumstances, for what periods of time and what the employer’s obligations actually are.

The FMLA is a law full of technicalities requiring meticulous attention to detail. This Article is a broad-brush treatment of the employer’s responsibilities under the FMLA.

Who is Eligible to Take FMLA Leave?

The first step in determining whether an employee is eligible of FMLA leave is to determine whether the FMLA is applicable to the employer. An employer must employ 50 or more employees within a 75 mile radius before the provisions of the FMLA apply to its employees.

If the employer is subject to the FMLA then the employee is potentially eligible for benefits if that employee has been employed for at least twelve months and has worked at least 1,250 hours during the twelve month period preceding the FMLA leave.

The eligible employee may then take up to twelve work weeks of unpaid leave in the following circumstances:

• The birth of the employee’s child;
• Placement of a child with the employee for adoption or foster care;
• The need to care for the employee’s child, spouse, or parent who has a serious health condition; or,
• The employee’s own inability to work because of a serious health condition.

What is a "Serious Heath Condition"?

A sometimes contentious question is what constitutes a "serious health condition"? The statute simply defines the phrase as a physical or mental illness, injury or condition which either involves inpatient care or continuing treatment by a health care provider.

To qualify as inpatient care the person need only be hospitalized for any overnight stay.

To qualify for "continuing treatment by a health care provider," the condition needs to include inability to work or perform other regular daily activities for a period of more than three consecutive days, and result in either treatment on two or more occasions by, or under the supervision of, a health care provider, or treatment by a health care provider on at least one occasion if it results in a continuing regimen of treatment under the provider’s supervision.

How Much Leave is Available and in What Increments?

The period of leave is up to 12 weeks within the designated twelve month period. FMLA leave is typically taken off in a continuous block of several weeks, although some conditions, such as depression or chronic migraine headaches, make intermittent leave a medical necessity.

An individual who suffers from migraine headaches, or who is diagnosed with depression and is under the continuing care of a mental health professional, will likely qualify as having a serious health condition that is periodically, rather than continuously, debilitating. Such an employee might then, for example, be entitled to take FMLA for two hours a day, twice a week, in order to obtain treatments from a psychologist. A flare up of migraine headaches can suddenly render the employee incapable of working for a half day or more, times that would also qualify for intermittent FMLA leave without requiring advance notice if medically certified.

A special rule for calculating leave entitlement applies to spouses employed by the same employer. They are entitled to an aggregate twelve work weeks of leave in a twelve month period to care for a newborn child or a newly placed adopted or foster child. Nevertheless, when spouses use a portion of the twelve week leave entitlement for a purpose subject to this limitation, each remains entitled to the difference between the amount of time he or she took individually for that purpose and the balance of twelve weeks for any type of FMLA leave not subject to the limitation, for example, the individual’s own serious health condition.

How is FMLA Leave Calculated and Recorded?

The leave may be taken during a 12 month period chosen by the employer from an array of four methods: a calendar year, a fixed "leave year" such as a fiscal year, a twelve month period measured forward from the first day an employee’s FMLA leave begins, or a "rolling" twelve month period measured backward from the date an employee uses any FMLA leave. The employer must designate its method and if it fails to do so then the employee may choose any one of the four methods that is most personally advantageous.

The employer then has responsibility for keeping track of the amount of FMLA leave taken and how much remains available. If the employee is eligible for paid leave, whether vacation, sick leave or other PTO, the employee may elect to use the paid leave during the time of the otherwise unpaid FMLA leave. Likewise, the employer may require the employee to use the paid leave for any part of the twelve weeks of FMLA leave. The FMLA leave and the paid leave in both instances will run concurrently.

What Can the Employer Require from an Employee Who Applies for FMLA Leave?

The law generally requires the employee to provide 30 days advance notice of the need to take FMLA leave when it is foreseeable. When 30 day advance notice is not practicable, however, the notice must be given "as soon as practicable," which may translate to no advance notice in case of some acute, debilitating condition. The employer may further compromise its right to notice by failing to post FMLA information, as discussed below.

The employer can also require certification from the employee’s health care provider if the employer has given the employee prior written notice of this requirement. The Department of Labor has issued form WH-380, which may be used for such medical certifications.

While the employee is on leave, and provided that the employer has in effect a previously promulgated policy, the employer can require the employee to report in at reasonable intervals to update the employer on the employee’s status and intention to return to work. This requirement may not be enforced on a discriminatory basis.

What Rights are the Rights to Continued Health Insurance Coverage?

The employer is required to maintain the employee’s coverage under any group health plan at the level and under the conditions of coverage that would have been provided if the employee continued in active employment.

An employee on FMLA leave may be required to pay the employee share of health insurance premiums. If the time off is unpaid, then arrangements may be made with the employee to pay that part of the premium. In those cases the obligation to continue the coverage ceases if the employee’s premium payment is more than 30 days late. Even so, the employee must be restored to the coverage upon return to work. To prevent administrative problems, an employer may pay the employee’s share of any missed premium payments. The employer is permitted to recover such payments when the employee returns to work, or if the employee voluntarily decides not to return to work. If the employee fails to return to work because of the continuance of the serious health condition or other circumstances beyond the employee’s control, however, then the recoupment of the premiums is not permitted.

What are the Employee’s Rights to Job Restoration?

In most cases the FMLA requires the employer to restore the employee to either the same position held by the employee when the leave commenced or "to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment." This alternative provides some leeway for the employer, which is important since it is not always possible to restore the employee to his former position. The Department of Labor regulation on the subject, however, requires restoration to a job that involves "the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority."

Much ink could be spilled over the meaning of "equivalent" in this context, and lawyers may disagree over whether a different job is actually "equivalent." Suffice it to say that the employer would do well to get legal counsel before offering a returning employee something other than the same job, but it can be done.

The reinstatement requirement does not apply to any salaried employee who is among the highest paid 10% of the employees employed by the employer within 75 miles of the facility at which the highly compensated employee worked prior to the leave. This "key employee" exception applies if the denial is necessary to prevent substantial and grievous economic injury to the employer’s operations. For example, if the key employee performs some essential role within the organization, one that demands a replacement, and the replacement will not take the job on a temporary basis, then the erstwhile key employee is effectively bumped if the employer cannot afford paying two people to do the same job.

There are other circumstances when the employee will not be entitled to job restoration. If the employee on leave would have been terminated even if he remained in active service, for example, if the employee was working in an office, department, or division that was shut down due to a reduction in force, then that employee does not have any right to job restoration. Also, if the individual comes back to work with physical restrictions which make it impossible to do the job, then the FMLA does not require the employer to reinstate. It is important to note, however, that each of these examples may implicate other federal laws, the WARN Act and the Americans with Disabilities Act, respectively.

Are There any FMLA Posting Requirements?

Every covered employer is required to prominently post a notice explaining the provisions of the FMLA and procedures for filing complaints of FMLA violations with the Department of Labor. Neglectful employers may be assessed a civil money penalty of $100 per offense and are precluded from holding employees to what is otherwise required of them under the FMLA, including the requirement of giving advance notice.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees and investors. Joe Austin practices in the firm’s Labor and Employment Group, where he represents employers before the Equal Employment Opportunity Commission, the National Labor Relations Board, the Employment Security Commission, federal and state wage and hour divisions and the North Carolina Industrial Commission. Comments or questions can be sent to wja@wardandsmith.com.