Ten Myths about the Family and Medical Leave = Act

Several = areas of=20 the Family and Medical Leave Act (FMLA) are not well=20 understood, leading to unnecessary disputes. = Here are=20 some common myths about the FMLA and the correct=20 explanations.

Myth=20 1. A private employer subject to other = federal=20 employment laws is also subject to the = FMLA. A = private=20 sector employer is only subject to the FMLA if it has = 50 or=20 more employees. In comparison, there is a = 15-employee=20 threshold under Title VII of the Civil Rights Act and = the=20 American with Disabilities Act (ADA). The Age=20 Discrimination in Employment Act (ADEA) has a = 20-employee=20 threshold.

Myth=20 2. Because leave under the FMLA is a = statutory=20 right, employer policies about leave are not = relevant. =20 In actuality, employer policies play a large role in=20 determining exactly what the statutory rights = are. For=20 example, employer policies can require employees to = exhaust=20 accrued paid leave before taking the balance of their = FMLA=20 leave as unpaid. Also, employers can require = employees=20 to comply with attendance policies that require = specific types=20 of notice if an employee's absence is foreseeable, and = employer policies can require more than the minimum = notice set=20 forth in the FMLA itself.

Myth=20 3. Every employee of an employer = subject to the=20 FMLA is eligible for FMLA leave. = Even if an=20 employer is subject to the FMLA, employees must meet = four=20 conditions before having the right to FMLA = leave: they=20 must (1) work for an employer large enough to be = subject to=20 the FMLA (have at least 50 employees within 75 miles = of the=20 employee's worksite), (2) be eligible (have worked at = least=20 1,250 hours and have been employed for at least 12 = months),=20 (3) have a qualifying reason for the leave (see Myth = 6), and=20 (4) not already have used all the leave=20 available.

Myth=20 4. An employee can take 12 weeks of = FMLA leave=20 every year. = Employers=20 have the right to choose one of four methods to = calculate the=20 12-month period: (1) the calendar year, (2) any = fixed=20 12-month period, such as the employer's fiscal year or = the=20 year beginning with the employee's anniversary date, = (3) a=20 12-month period measured forward from the first time = leave is=20 taken, or (4) a 12-month period measured backward from = when=20 leave is used.

Myth=20 5. An employee must specifically = request FMLA=20 leave in order to be entitled to it. = The=20 employee only has to provide verbal notice about the = need to=20 be absent and information that would entitle them to = leave=20 under FMLA regulations. It is then the = employer's=20 responsibility to determine whether the FMLA applies = as well=20 as the length of the leave.

Myth=20 6. A note from a medical provider is = sufficient=20 to create entitlement to FMLA leave. = The FMLA=20 requires leave in only four basic situations: = (1) the=20 birth and care of a child, (2) placement of a child = for=20 adoption or foster care, (3) care for an immediate = family=20 member (spouse, son/daughter, parent) with a "serious = health=20 condition," and (4) the employee's own serious health=20 condition that makes the employee unable to perform = the=20 functions of the job. Each situation is subject = to=20 detailed regulations.

Myth=20 7. An FMLA claim must be asserted = promptly, and=20 a charge must be filed before going to court, just = like claims=20 under Title VII, the ADA and the ADEA. = Unlike=20 Title VII, the ADA, and the ADEA, there is no = requirement to=20 file a timely administrative charge before filing a=20 lawsuit. The statue of limitations for FMLA = claims is=20 two years, and three years for willful=20 violations.

Myth=20 8. Because the FMLA only requires 12 = weeks of=20 leave, the potential liability for an FMLA violation = is not=20 significant. = Violating=20 the FMLA can expose the employer to liability far in = excess of=20 12 weeks of pay. FMLA liability includes = reinstatement,=20 backpay, liquidated damages, and interest, as well as = expert=20 witness fees, lawyers' fees and costs. Also, = individual=20 liability is possible under the = FMLA.

Myth=20 9. An FMLA claim is similar to a Title = VII or=20 ADEA discrimination claim. = The FMLA=20 creates two different claims: an interference = claim and=20 a retaliation claim. To establish an = interference claim,=20 the employee must show that (1) the employee was = entitled to=20 FMLA leave, (2) the employer interfered with the right = to=20 leave, and (3) the employer's action was related to = the=20 exercise of FMLA. The employer can only defend = by=20 proving that it would have taken the same action = regardless of=20 the employee's use of or request for FMLA leave. = In=20 contrast, an FMLA retaliation claim is typically = analyzed like=20 retaliation claims under Title VII. The employee = retains=20 the burden of proof. If the employee shows a = prima facie=20 case of retaliation, the employer must articulate a=20 nonretaliatory explanation for its action, and then = the=20 employee must prove it is a pretext for=20 retaliation.

Myth=20 10. Evidence about an employee's = medical=20 condition after the = request for=20 leave is not relevant. Some = courts have=20 ruled that if medical evidence shows the employee = would not=20 have been able to return to work at the end of the = FMLA leave=20 period, an FMLA interference claim is barred. In = a=20 retaliation claim, that evidence creates an "after = acquired=20 evidence" defense that should cut off backpay no later = than=20 the end of the FMLA leave period.

In = summary,=20 employers should know if they are subject to the FMLA, = formulate FMLA policies and attendance policies, and = determine=20 when an absence is protected under FMLA. These = actions=20 will help protect an employer against claims under=20 = the FMLA.

Vicki=20 M. Crochet
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Andr=C3=A9e=20 M. Cullens
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M.=20 Lenore Feeney
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Phillip=20 E. Foco
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Amy=20 Groves Lowe
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Todd=20 S. Manuel
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John=20 P. Murrill
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Thomas=20 R. Peak
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David=20 J. Shelby
view=20 bio

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