Questions regarding the Family and Medical Leave Act (FMLA) can get tricky. For example, if an employee is off work because of a medical condition, can the employer start the FMLA clock ticking even if the employee doesn’t want his time off counted against his FMLA leave allotment?
And what about an exempt employee who has been out on leave and is returning to work with restrictions that prevent her from working her full schedule? Does she still have to be paid her full salary?
Those are questions a group of attorneys well-versed on the intricacies of the FMLA addressed recently.
Can an employer force FMLA leave?
The FMLA entitles eligible employees of employers covered by the FMLA to take up to 12 weeks of unpaid leave during a 12-month period to tend to their own or a close family member’s serious health condition. Typically, employers ask the employee taking time off to submit medical certification forms to document that the employee qualifies for the leave, but what if the employee thinks he may need more than 12 weeks? Such an employee might want to use time off earned under an employer’s leave policies before using up any of the FMLA’s 12 weeks?
Reggie Gay, an attorney with the McNair Law Firm, P.A. in Columbia, South Carolina, reminds employers that employees don’t have to submit official certification paperwork as long as they give the employer enough information to show they qualify for leave under the act. “In general, the designation of leave is the employer’s responsibility, not the employee’s responsibility,” he says.
“In other words, the employer determines whether leave qualifies for protection under the FMLA,” Gay says. “The FMLA regulations require that within five days of learning that an employee may need qualifying leave, an employer must notify the employee that the leave is eligible to be counted as FMLA leave. At that time, the employer should explain the employee’s FMLA rights and give him the medical certification form to be completed by his healthcare provider, if necessary.”
Jo Ellen Whitney, an attorney with the Davis Brown Law Firm in Des Moines, Iowa, agrees that an employer can designate the employee’s time off as FMLA leave even without certification. “However, any information about the reason for the leave may be obtained only from the employee or his spokesperson and may not be garnered from workplace gossip or similar sources,” she says. “Once you determine that the leave is FMLA-qualifying, you must notify the employee within five business days that the FMLA designation will apply, absent extenuating circumstances.”
9th Circuit ruling
Although the FMLA regulations allow employers to start the FMLA clock running when they have enough information to determine that an employee’s leave qualifies as FMLA leave, a 2014 ruling from the 9th Circuit Court of Appeals adds a wrinkle to the issue.
Sarah Jane Shine, an attorney with Perkins Coie LLP in Anchorage, Alaska, reminds employers that in Escriba v. Foster Poultry Farms, Inc., the 9th Circuit ruled that an employee can decline FMLA leave “even if the reason for seeking leave invoked the FMLA’s protection.”
The appeals court’s decision is not binding in states outside the 9th Circuit, but it’s uncertain how other courts might rule.
Shine advises the employer to document the employee’s refusal to designate his leave as FMLA leave. “You may even consider having the employee sign an acknowledgment stating that he is voluntarily choosing not to take FMLA leave and has refused to submit medical certification for that reason,” she says. “That way, you can ensure that you will be able to show that you prompted the employee to take FMLA leave but he refused to do so.”
Reduced pay for reduced schedule?
Another tricky area for employers involves an exempt employee returning to work on a reduced schedule after a medical leave. The Fair Labor Standards Act (FLSA) requires that exempt employees be paid on a “salary basis”—meaning they must be paid a predetermined salary for every week in which any work is performed regardless of the quantity or quality of work—in order to keep the exemption.
The question put to the attorneys involves an exempt employee who has been on a medical leave and is returning to work with restrictions resulting in a reduced work schedule. The employer wonders if she has to be paid her full weekly salary for partial weeks worked.
Mark M. Schorr, an attorney with Erickson & Sederstrom, P.C. in Lincoln, Nebraska, reminds employers that normally the FLSA regulations allow employers to reduce exempt employees’ pay if they are absent for at least a full day because of sickness or an accident and the employer makes the deduction in accordance with a bona fide sick or disability leave plan. Docking the employee’s pay in other circumstances threatens the exempt status.
But the FMLA also may come into play, Jerrald L. Shivers, an attorney with The Kullman Firm in Jackson, Mississippi, says. If the employee qualifies for and is taking FMLA leave for the time she misses after returning to the job, “the FMLA regulations allow you to dock her weekly salary for time missed without jeopardizing her exempt status.”
If the employee isn’t taking intermittent FMLA leave and the employer has a sick leave policy, the employer can reduce her weekly salary only for full, not partial, days missed. “Otherwise, you will have to pay the full salary for partial weeks worked to preserve the employee’s exempt status,” Shivers says.