No sooner do we think we’ve got FMLA figured out than another baffling question comes along. Today’s Advisor takes a look at some vexing FMLA questions recently sent to BLR’s team of experts.
Counting FMLA Time
Q. Are we required to approve FMLA leave for a father who would like to take up to 7 weeks to care for his child after the mother takes up to 6 weeks after giving birth?
Under FMLA, eligible employees can take a full 12 weeks of FMLA leave (assuming they have had no other leave-qualifying events during the 12-month period) for the birth (or adoption) and to be with a healthy newborn or newly adopted child (so-called “bonding leave”).
Bonding leave is available to either men or women, and no medical certification is required. However, bonding leave must be completed within 12 months of the date of birth or placement. When both husband and wife work for the same employer, the full amount of leave is limited to an aggregate of 12 weeks.
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Note: The courts have expressed a clear intent that both men and women be eligible for FMLA leave to care for a newborn child. Employers should not under any circumstances question the right of a male parent to take FMLA leave for bonding.
Q. Are we required to pay monthly incentive bonuses while the employee is out on FMLA leave?
The 2009 final FMLA regulations state that employees on FMLA leave are not entitled to any bonus or incentive payment, whether it is discretionary or nondiscretionary, when the bonus or other payment is based on the achievement of a specified goal, such as hours worked, products sold, or perfect attendance (assuming that the employee has not met the goal due to FMLA leave). Employers may deny such payment only if employees on an equivalent leave status (non-FMLA leave) are also denied bonus and incentive payments.
Bonuses that are not premised on the achievement of a goal, such as a holiday bonus given to all employees, may not be denied to an employee because he or she took FMLA leave.
Q. Can an employee use FMLA leave for care of a parent out of the country?
An employee may use family and medical leave to care for a parent outside of the country, assuming that the employee is eligible for FMLA leave (has worked 12 months and 1,250 hours) and the employee is “needed to care” for a parent who has a “serious health condition,” as these terms are defined by the FMLA.
The 2009 final FMLA regulations address the issue of medical certifications executed by doctors in countries outside the United States. According to the final regulations, in circumstances in which the employee or a family member is visiting in another country or a family member resides in another country, and a serious health condition develops, the employer must accept a medical certification as well as second and third opinions from a healthcare provider who practices in that country. Where a certification by a foreign healthcare provider is in a language other than English, the employee must provide the employer with a written translation of the certification upon request.
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BLR’s recently updated Family and Medical Leave Act Compliance Guide—the book some are calling the “FMLA Bible”—simplifies the frustrating and confusing complexities of the FMLA, so you know exactly how to comply in every situation.
It contains practical answers to all the FMLA questions you are asking—and the ones you haven’t thought of but should be asking.
The Family and Medical Leave Act Compliance Guide includes:
- Leave law overview
- All the new forms and advice on how to use them
- Practical guidance on implementing all aspects of the new rules
- Analysis of federal and state laws, what they require, and how they interact
- Leave circumstances, coverage, and eligibility—for FMLA, ADA, workers’ comp, and military leave
- Recordkeeping and reporting requirements
- Reasonable accommodation
- Sample policies and forms
Plus
- A quarterly newsletter and updates to make sure you stay in compliance as any changes come about
Get more information or order your copy of the Family and Medical Leave Act Compliance Guide.
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