Q. The law defines a health condition as serious if the employee is treated by a healthcare provider for more than 3 consecutive, full calendar days. So an employee could see a provider on a Friday and the following Monday and still qualify? I would have hoped it would be workdays.
A. No, it’s not workdays. Saturday and Sunday are included for the purpose of defining a serious health condition.
Q. Regarding the definition of a "key employee" for FMLA, must the person be paid a salary? What if a top 10 percent earner is paid on a commission basis or with hourly wages? Can he or she still qualify as a key employee?
A. No, he or she can’t. Not only must key employees be salaried, they must also be among the 10 highest-paid employees within a 75-mile radius that work for the company. And, such key employees must be informed of their status; you can't wait until they come back from leave to make the designation.
Remember that you must still grant leave to key employees. The distinction is that you would not guarantee reinstatement to their former jobs on their return from leave.
What's the advantage of taking leave to the key employee if there's no guarantee of reinstatement? The employee gets to continue health coverage.
Q. We have an employee who has been out for 8 weeks because of pregnancy complications, and her baby has still not been born. When it is delivered, must we give the mother an additional 12 weeks’ leave for care of a newborn? In other words, do the complications and the childbirth each qualify for 12 weeks’ leave?
A. Normally, no. Under the FMLA, the employee is allowed only 12 weeks’ leave in a 12-month period for any combination of conditions, such as the two separate needs of your employee. So, in most cases, only a total of 12 weeks would be allowed in your employee's situation.
However, the complete answer depends on the way you count your year for FMLA purposes. If you use a fixed calendar year, and if the timing were right, the woman might qualify for 8 weeks of leave at the end of one year, and then another 12 weeks at the beginning of the next year. To avoid this possibility, many employers choose one of the rolling year options for counting the 12-month period.
Note that leave to care for a child can be taken by either men or women, must be within 12 months of the child’s birth or adoption, and does not require medical certification.
Of course, as difficult as it is, FMLA is just one of comp and benefits folks' challenges. And the tough economy isn't making anything easier. You need guidance. You need new compensation policies. You need up-to-date competitive salary data. You need job descriptions and training programs. And you need quick answers to tricky questions.
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