by John Gause, Esq.
Published: Maine LAWYERS REVIEW, December 8, 1999
Most employees know that they are entitled to 12 weeks of maternity leave. The finer points of the Family and Medical Leave Act (“FMLA”) and Maine’s Family Medical Leave Requirements are less understood. Viewed in their entirety, these laws offer very generous protection to workers. This article gives an overview of the FMLA and its Maine counterpart.
The FMLA only applies to employers with 50 or more employees. This does not mean, however, that 50 people need to be actively working for the employer at one time. It is covered if 50 people appear on the payroll for 20 or more weeks during the current or preceding calendar year. These can be people who work part-time or no time at all, so long as they appear on the payroll. Multiple job sites can be viewed and multiple businesses may be acting as a “joint employer” for purposes of calculating the number of employees.
An employee is eligible to take an FMLA leave if she has been employed for at least a year and has worked at least 1250 hours during that time. This works out to be roughly 24 hours per week. As long as the person appears on the payroll for 12 continuous months and receives benefits, there is no requirement that she work a regular schedule or even that she work continuously during those 12 months. There can be long periods that the employee is not actually working and is receiving no pay at all.
There are three basic justifications for taking an FMLA leave: to care for a newborn or adopted son or daughter, to recover from or receive treatment for a “serious health condition,” or to care for a spouse, child, or parent with a “serious health condition.” The leave to care for a newborn or adopted child must be taken within 12 months of the birth or adoption. A “serious health condition” is defined as an “illness, injury, impairment, or physical or mental condition that involves–(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.”
Under the second part of the definition of a serious health condition, the regulations generally require that there be a period of work incapacity of more than 3 consecutive days during which time the employee is seen two or more times by a “health care provider” or is under the “continuous supervision” of such a provider. The term “health care provider” is defined broadly to include just about anyone imaginable, from medical doctors to clinical social workers to Christian Science practitioners. “Continuous supervision” can mean receiving prescription medication or therapy under the direction of the provider, but it does not include doing things that you do not need a health care provider for, such as aspirin, bed rest, or exercise.
It is not essential, however, that an employee with a chronic health condition see a health care provider during her absence in order to be protected by the FMLA. Examples of chronic conditions include asthma, diabetes, and epilepsy. Thus, if an employee has an asthma attack in the morning and cannot go to work, she need not schedule an appointment with her doctor or admit herself to the hospital in order for her absence to be covered.
The basic entitlement under the FMLA is to take 12 workweeks off during a 12- month period. If the leave is because of a serious health condition, the employee can choose to take the 12 weeks all at once, take it on an intermittent basis (e.g., a week here, a week there), or reduce her scheduled number of work hours per week. Leaves to care for a newborn or adopted child must be taken all at once, unless otherwise agreed to by the employer. There is no right to be paid during the leave.
The employee must give at least 30 days advance notice of the timing of the leave if it is going to be for a foreseeable reason, such as for a birth or adoption. If the leave is not foreseeable, the employee must give as much notice as is “practicable.” If there is any flexibility in the scheduling of the leave, the employee must do everything possible to time it so that it does not disrupt the employer’s business. An accountant should thus try to take a leave at some time other than year end. Of course, in most cases the employee is going to have little or no control over the reasons for the leave, in which case there need not be a consideration of the impact on the employer.
The employer can choose the “12-month period” in which the 12 weeks are allocated. This choice can mean the difference between a given request for leave being covered by the FMLA or not. The calendar-year method of calculating the 12-month period would clean the slate each January. The employer can also choose to begin the 12- month period when the employee first takes a FMLA leave. If this method is chosen, the employee would be entitled to another 12 weeks off beginning 12 months after her first FMLA leave. Whatever method is chosen, the employer must give its employees advance notice of the method or the most beneficial method to the employee will be used.
The employer has the burden of designating leaves as FMLA qualifying, and thus deducting the leave from the 12 week annual allotment. The employee need only verbally request a leave, and give enough detail to trigger the FMLA. The employer can seek additional information (such as a doctor’s certification) if it is unsure whether the leave is in fact protected. If the employer fails to notify the employee in writing that the leave will be treated as an FMLA leave, it will not be counted against the employee’s 12- week entitlement.
At the conclusion of any FMLA leave, the employer must reinstate the employee to her same job or an “equivalent position,” and the employee is entitled to the same benefits under the same conditions as before the leave. An “equivalent position” means one that is “virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status.” If the employee chose a reduced schedule, the employer can transfer the employee to another job during the period of the reduced schedule, but the employee must be returned to her old job at the conclusion of the reduced schedule.
Another essential requirement is that the employer must maintain the employee’s group health insurance coverage during her FMLA leave. If the employee would ordinarily have to pay a share of the premiums, however, she must continue to do so during the leave. The employer can terminate the insurance if the employee gets more than 30 days behind on her share of the premiums. If the employee decides not to return to work, other than for a serious health condition or circumstances beyond her control, the employer can recover the premiums it paid for the employee’s health insurance during her FMLA leave.
An FMLA violation can be redressed in state or federal court, and there are no administrative exhaustion requirements (such as filing with the Maine Human Rights Commission). The aggrieved employee can recover lost wages and benefits, as well as interest on that amount. Liquidated damages are awarded equal to the lost wages, benefits, and interest, unless the defendant can show that the FMLA violation occurred in good faith. Equitable relief, including reinstatement, is also available. The prevailing plaintiff can recover attorney’s fees. There is a 2-year general statute of limitations, which is increased to 3 years in cases of willful violations.
Maine has parallel statutory Family Medical Leave Requirements. The Maine law tracks the FMLA with a few important differences. One is that an employer is covered under the Maine law if it has 25 employees, not the 50 required by the FMLA. At least 25 employees must be employed at one of the employer’s locations, however. Thus, there may be circumstances where an employer would be covered by the FMLA but not the Maine statute. A sandwich chain employing fewer than 25 people at each site, but more than 50 people at all sites combined, would arguably be subject to the FMLA but not Maine’s law.
Other differences are that there an employee is covered by the Maine law regardless of the number of hours she works, compared to the 1250-hour FMLA requirement; Maine only allows 10 weeks of leave in a 2-year period, compared to the 12 weeks per year under the FMLA; and employers under the Maine law are not required to pay their share of health insurance premiums during an FMLA leave. Maine’s remedies are limited to equitable relief and liquidated damages of $100 for each day a violation continues. There is no attorney’s fees provision in the Maine statute.
Other statutes may also come into play when an employee needs to take time off for reasons protected by the FMLA. If an employee with a disability has exhausted her 12 week allotment but still needs more time off, she should request a “reasonable accommodation” under the Americans with Disabilities Act. The employer would then need to demonstrate an “undue hardship” in order to avoid having to honor the employee’s request. If the leave is for a pregnancy-related condition, the Pregnancy Discrimination Act (“PDA”) would require the employer to grant a longer leave if it allows more than 12 weeks off for other reasons. Further, the PDA may require that the employee be paid disability insurance benefits during her pregnancy or maternity leave.
The FMLA and Maine Family Medical Leave Requirements play an important part in protecting employees who need to take time off for reasons that are often beyond their control. They also insure that people are not forced to chose between having a family and maintaining participation in the workforce. While not everyone will be protected, these laws strike a balance between these interests and employer needs.