A recent survey by allbusiness.com determined that the average cost to defend a Family Medical Leave Act (FMLA) lawsuit is $80,000, even if you win. 

A recent survey by allbusiness.com determined that the average cost to defend a Family Medical Leave Act (FMLA) lawsuit is $80,000, even if you win. In 2008, Chase bank didn’t win and was ordered to pay almost $8 million for violations under the FMLA. Although many people immediately think of pregnancies when someone mentions FMLA, it is actually a resource for employees impacted by any number of health conditions.

The FMLA is a federal law requiring employers to give covered employees up to 12 weeks of unpaid leave for serious health conditions as well as several other employee needs such as the birth or adoption of a child. The law applies to all public sector employers and any private sector employer with at least 50 employees. A covered employee is any employee with at least 12 months and 1,250 hours of service to the employer. In short, if your company has at least 50 employees and you have operated for at least a year, you need to understand the FMLA better than Chase bank did.

Six Degrees of Serious Health Condition

An employee is entitled to FMLA leave for any “serious health condition.” And the employee can take leave for either their own serious health condition or that of a close family member. So what is a “serious health condition”? There are actually six definitions and an employee only needs one.

1. An illness, injury, impairment, or physical or mental condition that involves inpatient care at a hospital, hospice or residential care facility.

2. Continuing treatment by a health care provider for any period of incapacity related to pregnancy or prenatal care.

3. Continuing treatment by a health care provider for a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective.

4. Continuing treatment by a health care provider for any absences to receive multiple treatments for restorative surgery or for a condition that would result in at least three days of incapacity if untreated.

5. Continuing treatment by a health care provider for a period of incapacity lasting more than three full consecutive calendar days.

6. Continuing treatment by a health care provider for any period of incapacity or treatment for chronic serious health conditions over an extended period of time.

If you’re thinking, “Wow, that’s a lot of different things” - you’re absolutely right. It’s because FMLA extends to so many different medical conditions that it’s easy to mistakenly deny an employee leave they are entitled to. And that’s a lawsuit.

Definitions 5 and 6 are particularly vulnerable to employee abuse and have consistently been a thorn in the side of employers. In a minor victory for employers, the Department of Labor did add some new restrictions to the definitions. Definition 5 now requires that the employee must make two separate visits to the doctor within 30 days of the incapacity. The first visit must be within 7 days of the incapacity. Alternatively, the employee may receive one treatment within 7 days of the incapacity and then undergo a regimen of treatment. Definition 6 now requires at least two visits to a health care provider per year before the treatment is considered periodic.

New Coverage For Military Families

The realities of extended military deployments for our men and women in uniform have led Congress to create two new categories of coverage designed to help them. The first is for Qualifying Exigencies related to a call to active duty. The second is a Military Caregiver category intended to allow employees to care for a family member who was injured or who aggravated an injury while on active duty.

The Qualifying Exigencies category gives employees 12 weeks of unpaid leave to deal with circumstances arising out of a family member’s active duty or call to active duty status. The Department of Labor has identified eight circumstances that constitute a qualifying exigency:

1. Anytime the call to active duty status is seven days or less (short notice deployment).

2. To attend military events and official activities.

3. To attend to childcare and school activities.

4. To make financial or legal arrangements.

5. To attend non-health care related counseling.

6. An employee is entitled to five days of FMLA leave to spend with a family member on short-term rest leave.

7. To attend post-deployment activities such as ceremonies for up to 90 days after active duty ends.

8. To attend additional activities not listed but agreed to by the employer.

The Military Caregiver category allows an employee to take up to 26 weeks in a 12-month period (the longest period afforded any category under FMLA law) to care for a spouse, son, daughter, parent, or next of kin recovering from a serious illness or injury sustained while serving on active duty. Military caregiver leave may be combined with other types of FMLA leave, but the total FMLA leave cannot exceed 26 weeks in any 12-month period.

Other Changes to the FMLA

Congress made substantial changes to the FMLA in 2009. Under the old law, many FMLA violations were subject to a “categorical” penalty which awarded employees 12 more weeks of FMLA leave for any employer violation. Employers pointed out that at least some technical violations resulted in only a minimal impact on the employee and should not warrant a full 12 more weeks of leave. And the Department of Labor actually listened. Under the new FMLA, the categorical penalty has been removed and now courts assess the impact of the specific violation before imposing any penalties.

Another change was barely a change at all, but it is helpful for employers. Employers have always been able to require employees to use their paid time off - sick time, comp time, vacation time, etc. - as part of their FMLA leave. The courts clarified that all paid time off is now treated the same for FMLA purposes.

As recently as June, the Department of Labor (DOL) clarified the definition of “son and daughter” under the FMLA to include employees who have no biological or legal relationship to the child, but assume the role of caring for them. Thus, the DOL interpretation applies to non-traditional families, including same sex partners.

In what must have been an accident, the DOL made some changes that actually help employers. The biggest is a new requirement that employees provide medical certification of their serious health condition. This comes with several caveats. Employers should use DOL form WH-380 E/F to ensure their request for certification only requests permissible information. Once completed, the form may only be given to the employer’s human resources professional, a leave administrator, or a management official. But under NO CIRCUMSTANCES may the form be given to an employee’s direct supervisor. If an employer is unsatisfied with the certification provided by the employee, it must notify the employee in writing of what portions are incomplete or insufficient and give the employee seven calendar days to cure the deficiency. Employers are also now permitted to request a new medical certification each leave year for conditions lasting longer than one year.

Another win for employers was new regulations requiring employees to notify employers they are taking FMLA leave using the employer’s usual and customary call-in procedures for reporting absences, absent unusual circumstances. Under the old law, employees could be absent for two full days before they were required to notify their employer. 

Things To Do Now

If you don’t already have one, designate a trusted manager as the FMLA decision-maker and record-keeper, preferably one familiar with your policies. Pick a manager who is not a direct supervisor of any employees who might ask for FMLA leave, if at all possible. Have that manager visit the Department of Labor website and familiarize themselves with the new rules of the FMLA. Last, update the company FMLA compliance policies. The new regulations give employers new rights. Make the most of them.