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Family Medical Leave Act “FMLA”

Leave of absence questions:

More than any other issue, Human Resource people in general say that the Family and Medical Leave Act causes them problems.

Here are just a few of the overwhelming load of questions:

Q: I have an employee who is the primary caregiver for a grandparent. Does she qualify to take FMLA to give this care?

A: A grandparent is not a covered family member under the FMLA. However, if the grandparent stood in loco parentis to the employee when she was a child, the grandparent may be considered a covered family member under the FMLA. Such stand-in parents have day-to-day childcare and/or financial responsibility for a child who wasn’t born to them.

The fact that the employee may have had, in addition to the in loco parentis person, a biological, adoptive, step, or foster parent doesn’t preclude a determination that another person actually was responsible for her.  A simple statement by the employee is enough documentation to assert the relationship.

Q: An employee took FMLA to care for his seriously ill mother. Then he needed surgery. Does he get 12 weeks of leave for his mother plus 12 for himself?

A: The FMLA allows eligible employees to take up to 12 workweeks of leave during any 12-month period. As long as the employee has FMLA leave available and a qualifying reason, he is entitled to take it, as would have been the case if he still had part of his 12 weeks when his surgery took place. As long as he is not connected to the military, though, he gets only 12 weeks in the relevant 12-month period.

You can measure that in any of four different ways as long as you do so consistently for all your employees—unless you have employees in a state that requires a particular measurement method.

Q: I have an employee out on workers’ comp leave. When his injury first occurred, we notified him that his FMLA leave would run concurrently with the workers’ comp. He used paid vacation for the first 3 weeks. Will this extend his FMLA leave? If it’s workers’ comp, is he entitled to more than the 12 weeks available under the FMLA?

A: Generally, leave taken under the FMLA is unpaid. But employees may be eligible to be paid while they are on such leave by substituting paid vacation or other paid leave time. Such substitution doesn’t extend the 12 weeks allowed. Time taken off due to an injury covered under a state workers’ comp program may be counted against the employee’s FMLA time if it is a “serious health condition” and the employer designates the FMLA leave.

Because workers’ comp pays the employee a portion of his or her wages, the employer may not require the use of paid leave during the comp leave; such an arrangement would have to be agreed on by both sides. If the healthcare provider treating the workplace injury certifies that the employee can be given light duty, the employee can decline the offer of such a job.

As a result, the employee may lose workers’ comp payments but is entitled to use the remainder of his or her unpaid FMLA leave.

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