Law provides for time off work

Q We have a pregnant employee who is planning to take time off after giving birth to care for her baby. She wants to use the sick leave and vacation time she has accumulated for her postpartum leave so she will continue to receive a paycheck. The human resources (HR) director says that she must take unpaid leave under the terms of the Family Medical Leave Act (FMLA). Is this correct”

A The Family and Medical Leave Act provides that covered employers (those with more than 50 employees working within a 75-mile radius) must allow eligible employees (those who have worked for at least 12 months and 1,250 hours) up to 12 weeks a year of unpaid leave for certain medical and family situations, including the birth or adoption of a child. Leave is not guaranteed, however, for exempt “key” employees. (Smaller employers are not required to provide FMLA leave to their employees.)

Under the FMLA, the employer must provide unpaid leave for covered employees in qualifying situations. The law also permits employees to apply accrued paid leave, such as sick leave and vacation time, against the leave designated by the FMLA as long as company policy does not restrict the application for the requested purpose.

Therefore, if your pregnant colleague wishes to use accrued paid leave, the FMLA permits her to do so if company policy allows her to use it for that purpose. Usually, vacation time can be taken for any purpose; but sick time, if designated separately, may not be applicable to pregnancy; check your company handbook.

FMLA leave and paid leave may sometimes run concurrently — to the employee’s immediate economic benefit — but it exhausts benefit options that may be needed later. The employer can require the employee to exhaust any paid leave to satisfy FMLA leave, but the employer is required to notify the employee of this at the time the leave is taken.

The employer may require 30 days notice of foreseeable events (such as the expected date of delivery or adoption); but if unexpected events (change in medical condition or change in date of adoption) require the employee to take leave early, FMLA provisions still apply. Pregnancy complications can be counted against the time provided under the FMLA and may also alter whether or not sick leave time can be used.

The FMLA also provides that, upon her return to work, the employee must be reinstated to the same job or an equivalent position. Further, she is not to be penalized for taking guaranteed leave in any way. Using FMLA cannot count against her in figuring her bonuses or compensation, or in considering her advancement. For employment purposes, it is as if the leave never occurred, and the employee continued work uninterrupted in the usual fashion — although the employee may not necessarily accrue additional benefits during the FMLA leave period.

Employees commonly do not acquire additional benefits (such as sick/vacation time) while taking leave under the FMLA, but this policy varies among companies. If a company provides that employees on paid vacation continue to earn leave time, for example, then those whose FMLA leave is running concurrently with paid leave may be entitled to accrue additional sick/vacation time. In such situations, consult the HR department to make advance determinations. Each state has its own leave laws with additional provisions, so companies and employees must not only meet the requirements of FMLA but also those of their state.

The particulars of these laws can get confusing and complicated when it comes to analyzing any particular situation. In applying the terms of the FMLA, the provisions of the institutional policies concerning leave are generally supplementary to the details of the law. The employer must determine not only the eligibility of the employee for FMLA leave but also whether the condition for which the time is being taken satisfies the requirements of law. The employer is also required to notify the employee when FMLA provisions apply. In part because there is the possibility of abuse of FMLA leave, the employer is entitled to make medical inquiries of the employee and may require confirmatory medical reports to ensure the leave does, in fact, qualify under the FMLA. In general, such inquiries must be made only of the employee, although the law does permit the employer to request an independent medical exam of an employee taking leave under certain circumstances.

One aspect of FMLA that is generally unknown to employees is that the 12 weeks of leave may be used as intermittent leave for serious medical conditions, either in the employee or in immediate family members. Intermittent leave can be in hourly, daily, or weekly increments. For employees who need to take sporadic time off for cancer treatments, for example, this can be helpful; but intermittent leave can be difficult for HR directors to track, and they sometimes find the provisions an invitation to abuse. Software programs are available to help track employee FMLA-qualified time off.

More information about the FMLA and intermittent-leave policies is available from the U.S. Department of Labor at .

Barbara Harty-Golder is a pathologist-attorney consultant in Chattanooga, TN. She maintains a law practice with a special interest in medical law. She writes and lectures extensively on healthcare law, risk management, and human resource management.

MLO’s “Liability and the Lab”is intended to provide risk management and human resource management education; it is not intended to provide specific legal advice. If you require legal advice, the services of an attorney should be sought. Dr. Harty-Golder welcomes your questions, which can be sent to her at [email protected]. Unless otherwise noted as “confidential” by readers, all queries will be considered for publication without further notice to them. Names, institution, city, and state will be removed before publication.

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