Tag Archives: employee

FMLA: Forgetting Minutiae Lead to (legal) Actions (Part IV)

Resuming our journey through the complex maze that is the Family and Medical Leave Act, we turn now to address – through a series of questions and answers – important aspects of FMLA when employees are dealing with their own serious health conditions (when they cannot perform their essential job functions) or the serious health conditions of their spouses, parents, or children. Previously, we addressed aspects of FMLA leave (i.e., up to 12 weeks of unpaid leave during the year) for employees who are expanding their family through births, adoptions, or foster child placement.

So, employees are entitled to FMLA leave if they have a serious health condition?

Correct.

And, they can take leave when a spouse, parent, or child has a serious health condition?

Again correct. Employees can also take leave to care for their spouse, parent, or child with a serious health condition.

What about grandparents or siblings?

Generally, no. Employees are not entitled to FMLA to care for grandparents or siblings or cousins or really any other family member other than their spouse, parent, or child. However, if a grandparent acted in loco parentis (acts as a parent) to the employee before the employee was of age, then FMLA leave could be taken.

I noticed that you italicized the phrase “serious health condition” above, was there a reason for doing that?

Yes, we were trying to draw your attention to that phrase because it has a special meaning under the FMLA.

What does it mean?

It means an illness, injury, impairment, or physical or mental condition that involves (1) inpatient care, or (2) continuing treatment by a health care provider.

What is considered inpatient care?

Inpatient care means that the person receiving treatment has to stay overnight in a hospital, hospice, or residential medical care facility.  It also includes periods of incapacity or subsequent treatment that’s connect to the overnight stay.

And, what do you mean by “continuing treatment by a healthcare provider”?

That phrase refers to any of the following types of ongoing treatment: incapacity and treatment, pregnancy or prenatal care, chronic conditions, permanent or long-term conditions, and conditions requiring multiple treatments.

You did that italicizing thing again with the word incapacity.

Yes, we did.  That’s because the word incapacity also has a special meaning.

What is the special meaning for incapacity?

An incapacity means an inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment of the serious health condition, or recovery from the serious health condition, which lasts longer than three days.

Are there any limits on what’s included in the incapacity period?

Yes. To qualify for FMLA coverage, the incapacity must also involve:

  • Treatment two or more times by a health care provider, under the supervision of a healthcare provider, or due to a referral by a health care provider, within 30 days of the first day of incapacity; or
  • Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

So, does a period of incapacity require a visit with a health care provider?

Yes.

Who qualifies as a healthcare provider?

Health care providers include professionals who you would normally think about, like doctors of medicine or osteopathy (authorized by the State in which the doctor practices), podiatrists, dentists, optometrists, nurse practitioners, physician assistants, or clinical psychologists.

Is that all?

No. Under the FMLA, a healthcare provider can also include chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist), nurse-midwives, clinical social workers, or any healthcare provider that an employer or the employer’s group health plan’s benefits manager accepts to certifying for purposes of a benefit claim that the individual has a serious health condition.

Going back to the period of incapacity lasting more than three days, are there any additional requirements involved with that period?

There are. The first (and sometimes only) in-person treatment visit with a healthcare provider must happen within seven days of the first day of incapacity.

Can you have partial day incapacities that count towards that original three-day requirement?

No, partial days of incapacity cannot be combined to satisfy the requirement that the incapacity extend more than 3 days or 72 hours.

Can an employee receive FMLA leave if they schedule all of their routine physical exams over three days and miss three full days of work?

No. The treatment at issue does not include routine physical examinations, eye examinations, or dental examinations. The treatment protected by the FMLA is generally limited to examinations to determine if a serious health condition exists and evaluations of that condition.

You mentioned earlier that the requirement for continuing treatment by a healthcare provider includes treatment for pregnancy or prenatal care, right?

Yes, it does. However, a pregnant employee can still be entitled to FMLA leave if the employee does not receive medical treatment for the absence. For example, a pregnant employee unable to report to work because of severe morning sickness would be entitled to FMLA for that absence.

You mentioned that chronic conditions can be a qualify reason, what are those?

A chronic serious health condition is one which:

  • Requires periodic visits for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
  • Continues over an extended period of time (including recurring episodes of a single underlying condition); and
  • May cause episodic rather than a continuing period of incapacity.

How periodic must a visit be?

It must be at least twice a year.

Are there examples of conditions that may cause episodic rather than continuing periods of incapacity?

Yes, those types of conditions may include asthma, epilepsy, diabetes, and similar types of conditions.

So, diabetes can be considered a chronic condition for which employees may use FMLA leave?

Yes, if it requires in-patient care or if it requires an employee go to the doctor at least twice a year.

Now, what about permanent or long-term conditions, must there be active treatment for all covered absences?

No. Although the individual suffering from a permanent or long-term condition must be under the continuing supervision of a health care provider, that individual is not required to receive active treatment during each covered absence.

Are there any examples of these types of conditions?

Examples of permanent or long-term conditions that fall in this category include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

What types of conditions requiring multiple treatments would qualify for FMLA leave?

Either, restorative surgery after an accident or other injury; or a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The third post addressed FMLA leave for the birth or adoption of a child. The next post in the FMLA series will address the qualifying reasons arising from issues specific to military members and their families.

Special thanks to Associate John Getty for his assistance with this blog post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Restrictions on Vaping and Texting Go Into Effect: Today is Gonna be the Day That the Florida Legislature Is Gonna Throw It Back to Employers*

By now you should’ve somehow realized that today (July 1, 2019) the amendment to the Florida Clean Indoor Air Act, which implements the 2018 constitutional amendment prohibiting vaping in the workplace, goes into effect.

Hopefully, businesses and employers realize what they have gotta do now that the use of e-cigarettes in indoor workplaces is prohibited. The word is on the street that indoor workplaces will become an oasis for non-smokers – who likely never really had a doubt that that the fire in the hearts of vaping employees would eventually go out.

Employers can no longer choose to allow employees to vape indoors. Those using e-cigarettes will now be relegated to designated smoking areas–-presuming employers provide smoking areas. Although we don’t believe any vaping employees will feel that great about this decision now, it is the law, and maybe it’s gonna be something that saves them.

Beyond that, all roads that employees have to drive are winding, and now all the lights from their cellphones won’t be blinding. Because, as of today, texting while driving has become a primary offense rather than being a secondary offense. There are many things that we’d like to say about this, but primarily, this means employee drivers can be pulled over for texting while driving without violating any other traffic law. Maybe, this will be a law that saves people.

Regardless, employers will need to throw it back to employees who are driving while working, and make sure that they somehow realize what they’re not to do. We don’t believe that any managers should refrain from training their subordinates and requiring employees to avoid texting-and-driving. That way, the managers can also be the ones who save their employee drivers and protect their employers’ businesses. Read more about the new texting law.

Both of these laws—after all—could have positive consequences on the health and well-being of workers and be the laws that save them.

* see ”Wonderwall” Oasis 1995

Special thanks to Associate John Getty for his assistance with this blog post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

FMLA: Forgetting Minutiae Leads to (legal) Actions (Part III)

After providing a general overview of the convoluted maze that is the FMLA, explaining  which employers are subject to the FMLA, and describing which employees are eligible for leave, we now continue our journey by addressing when an employee can take FMLA.

Eligible employees of covered employers may take up to 12 workweeks of leave during any
12-month period for one, or more, of the following reasons:

1. The birth of the employee’s son or daughter, or to care for the newborn child.
2. For placement with the employee of a son or daughter for adoption or foster care.
3. To care for the employee’s spouse, son, daughter, or parent with a serious health
condition.
4. Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job.
5. Because of any qualifying exigency arising out of the fact that the employee’s spouse,      son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status).

These reasons—along with a few others involving military service members that we will address in a future blog post—are known as “qualifying reasons” under the FMLA. Some of these qualifying reasons are straightforward while others involve important nuances. For today’s post, we’re going to address the issues that come up with points 1 and 2 above (the birth, adoption, or fostering of children) through another series of questions and answers.

I have an employee who qualifies for FMLA leave, and the employee is about to have a new child. What rights does that employee have?

As noted above, an employee who qualifies for FMLA can take up to 12 workweeks of leave during a 12-month period for the birth or care of a newborn child.

Does an employee have to take all the qualifying leave at one time?

It depends. An eligible employee may use intermittent or reduced schedule leave after the birth of a healthy child or placement of a healthy child for adoption or foster care, but only if the employer agrees.  If the employer does not agree, then the time off will be all at one time.

Does an employee need to take all of their FMLA leave for the birth of the child right after the child is born?

Not necessarily, an employee can take leave for the birth of a child any time up to 12 months after the child’s birth.

 Are both parents entitled to leave for the birth of their child?

Generally, both parents are entitled to leave for the birth of the employee’s child. However, if both spouses work for the same employer, the total combined leave taken by both spouses for the birth of the child or to care for the child after birth may be limited to a combined total of 12 weeks of leave during any 12-month period. In other words, both spouses have 12 weeks combined for the newborn child. Thus, the mother and father could both take 6 weeks each. Or the mother could take 9 weeks, and the father 3 weeks. Alternatively, if the mother takes 12 weeks, then her spouse would not be entitled to any FMLA leave.

Where both spouses use a portion of the total 12-week FMLA leave entitlement for the birth of a child, each spouse would be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes.

The foregoing is also true for the placement with the employee of a child for adoption or foster care. For purposes of the FMLA, a spouse includes a married husband or wife (husband or wife refers to the other person with whom an individual entered into marriage), which includes same-sex spouses.

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The next FMLA post in this series will address the qualifying reasons involving an employee’s own serious health condition or the serious health condition of family members.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

FMLA: Forgetting Minutiae Leads to (legal) Actions – Part II

As we continue through the convoluted maze of arcane rules known as the FMLA, we turn our focus to what makes an employee eligible for FMLA leave.

Generally, an employee of a covered employer is eligible to take FMLA leave, if the employee satisfies three requirements. They are:

(1)  the employee has been employed by the employer for at least 12 months;

(2)  the employee has been employed by the employer at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave; and

(3)  the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of the worksite.

These requirements do not apply to flight attendants and flight crew members. Persons in such positions are subject to special eligibility requirements that are not covered in this series.

Although these three requirements may seem pretty straightforward, they are not as clear cut as they appear. Accordingly, below you will find a few questions and answers designed to assist in understanding the concept of the “covered employee.”

Does the 12 months of service have to be consecutive?

No. The 12 months of service need not be consecutive. Generally, any combination of 52 weeks equals 12 months. Even so, a seven year break in service with the employer generally cuts off any prior service except in certain limited circumstances. Such circumstances include, but are not limited to, military service covered by The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) or written agreement, including a collective bargaining agreement.

When should it be determined if the employee meets the months of service requirement?

The determination of whether an employee has been employed by the employer for a total of 12 months must be made as of the date the FMLA leave is to start.

How are the hours of service calculated?

The FLMA’s definition of “hours of service” applies for the calculation of 1,250 hours. Accordingly, hours of service does not include those hours for which an employee is paid but does not work, such as holidays, paid vacation, and sick leave. Hours worked does include time worked as a part-time, temporary, or seasonal employee.

An employee returning from USERRA-covered military service is credited with the hours of service that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service in determining the employee’s eligibility for FMLA-qualifying leave.

If an issue arises with respect to employee coverage, the Department of Labor takes the position that the employer has the burden of showing that the employee has not met the hours of service requirement.

When should it be determined if the employee meets the hours of service requirement?

The determination of whether an employee meets the hours of service requirement must be made as of the date the requested FMLA leave is to start.

How does an employer determine if there are 50 employees within a 75-mile radius of employee’s worksite?

First, it has to be determined where the employee’s worksite is. An employee’s worksite is the site where an employee reports. If the employee does not travel to a specific location to work, then the worksite is the location from where the employee receives assignments.

For employees with no fixed worksite (e.g., construction workers, transportation workers, salespersons), the worksite is the site that is assigned as their home base, from which their work is assigned, or to which they report. With very few exemptions, an employee’s personal residence is not considered a worksite.

The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways, and waterways, by the shortest route from the facility where the employee needing leave is employed.

While public-sector employers are covered regardless of the number of employees employed, to be an eligible employee entitled to take FMLA leave, the public-sector employee must still be employed at a worksite in which the employer employs at least 50 employees within a 75-mile radius.

When should an employer determine if there are 50 employees within a 75-mile radius of employee’s worksite?

The determination of whether 50 employees are employed within 75 miles of the worksite is made when the employee gives notice of the need for leave.

What happens when an employee does not meet all three requirements until after the employee’s need for leave has begun?

An employee’s full FMLA rights are triggered as of FMLA eligibility. An employer cannot designate leave happening before the eligibility date as FMLA leave; and therefore, the employee becomes entitled to the full 12 weeks of FMLA leave in addition to any previously taken leave.

The first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth. The next FMLA posts in this series will address the FMLA’s original qualifying reasons for leave and then the qualifying reasons added in 2008.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Independent Contractor or Employee? That is the Question!

A person can provide services to a company as an employee or an independent contractor depending upon the nature of the relationship between the service provider and the company. Misclassification of employees as independent contractors remains a primary focus of many government agencies, including the IRS, U.S. Department of Labor, Florida Department of Economic Opportunity Reemployment Assistance Programs, and Florida’s Division of Workers’ Compensation.  Investigations by these agencies can be extremely costly, time-consuming, and even lead to personal liability and criminal penalties!

The presentation in the following link explains the detailed federal and Florida tests that are used by these four agencies to properly classify service providers.  It also provides practical examples in which the tests can be applied.  Additionally, the presentation includes guidance to help mitigate the potential for employer liability regarding other wage and hour complexities and pitfalls.

Independent Contractor or Employee? That Is the Question!

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557