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Family and Medical Leave Act
The Family and Medical Leave Act were signed by the President on February 5, 1993. "The Family and Medical Leave Act (FMLA) provide employees job protection in case of family or medical emergency. FMLA permits eligible employees to take up to 12 workweeks of unpaid leave during any 12-month period." (Martocchio, 2003)
When an employee must face to some certain special situations that need stop working temporarily due to the employee’s illness, employee’s family illness, the employer should give the right to the employees to look after their family member or themselves. To help employees balance work and family life, the government enacted the Family and Medical Leave Act. And this labor law must be applied in a variety of work places by affecting the employee’s benefits and employer’s policy. As a result, FMLA which have influenced the employees and employers a lot is essential for all the workers.
Family and Medical Leave Act
Prior to the FMLA, many employees can not handle the problems that need them to have a medical and family reason leave. When employees make a request for leave, the employer can deny them for any reason, and employees also could be fired for having family and medical leave. Or sometimes workers changed their work, even within the same firm, the workers may not be treated the same about the leave."Some employers had formal leave policies that were applied uniformly to their workforces while others had informal policies and the granting of leave depended on the particular circumstances."( Linda Levine, 2003)
To help employees balance work and family life, the Family and Medical Leave Act (FMLA) was passed in 1993. It is a law stating that employers (employing 50 or more workers) must grant employees up to 12 weeks of unpaid leave per year newborn child, an ill family member, or their own illness.
The goal of FMLA is to protect employees’ leave rights. So the employees can be given 12 weeks in every 12-month period for the childbirth, adoption, personal illness and family member bad health condition, when the employees are entitled the leave. Then employee is unpaid, when he or she leave is under the FMLA. However, the employee can receive health-care benefits only if the employee was still belong to the company. At the end of the leave period, the employer must let the employee return to his or her position to continue to work, or to provide an equivalent position for him or her. An equivalent position is that a job has the same benefits, the same work technical and the same requirement, actually the similar condition can be allowed. Also, when employees come back to work, the company must promise them not to be discriminated after their leave. And the employee can bring suit for it, such as lost wage and other damages.
The first to be shown is that employee must be eligible for FMLA leave which include the request for employees and employers.
The employer must employ at least 50 people as a company or a big firm.
The employees must work at least 12 months (which do not have to be consecutive) for the employer; and they must work at least 1,250 hours during the 12 months before the date FMLA leave begins.
Also, when the employee want use FMLA to have a leave, they must be included in these four circumstances. First, it can be used in the new baby birth and the need for the care for a newborn child. Second, the employee need to place with his or her son or daughter foster or adoption. Third, the employee needs to look after his or her family member when the family member suffered a bad health condition. Last, the employee has to take a leave to rest because of his or her serious health condition. Eligible employees are entitled to twelve workweeks of leave in any 12-month period.
Twelve weeks of Family and Medical Leave any twelve-month period may be a maximum of time the Employers can provide. The twelve-month period is beginning from the date an employee uses any leave. FMLA balance is equal to 12 weeks minus any FMLA time that have been taken during the immediately preceding 12 months.
When the employees need leave for the new baby birth or adoption of a child, and the need to foster their son or daughter. If an employee use this reason to request FMLA leave, he or she is usually entitled to begin leave when the child is actually born or adopted. However sometimes the employee need leave before the child born or adopted, it is just some request from doctors, the employee need to hand in some legitimate medical reason relating to the birth or adoption.
When the employees need leave for a serious health condition (child illness, parents illness or husband or wife illness, or personal illness) may be taken intermittently or on a reduced schedule, but it must be certified by a third party such as health care provider, a doctor, as needed for medical reasons. Employees’ certification must also include a statement of the medical necessity for this leave and the how long leave will be expected.
Generally, FMLA leave is unpaid. However, both the employer and the employee are requested put the employee's FMLA leave together with some paid leaves. The paid leave include vacation leave and sick leave. FMLA permits that an eligible employee can choose paid leave instead of FMLA leave. Even more, if an employee does not choose paid leave instead of FMLA, the employers were required to suggest the employees to substitute accrued paid leave to FMLA leave.
However, an employer is not required to allow substitution of paid sick or medical leave for unpaid FMLA leave some situation. When the company’s policy would not normally allow such paid leaves. There is the provision of the act that is the 1995 regulations was interpreted including two aspects: employers could require employees to use accrued paid leave before allowing them to take unpaid days, and employers were prohibited from placing any restrictions on an employee's choice to substitute accrued vacation or personal leave. Under this proposed regulations, employers could still require that employees use accrued paid leave before taking leave without pay, but employers still could reject an employee's request to use accrued vacation or personal leave if the employee did not comply with the company's accrued leave policies. Thus, if an employer required two weeks' notice for a vacation time request, but an employee needed immediate FMLA leave because of a spouse's sudden illness, the proposed regulations would allow the employer to prohibit the use of accrued vacation or personal leave and allow the employee to take only the FMLA leave without pay.
Therefore, when the company is allowed, an employee is able to substitute paid medical or sick leave to look after a seriously ill family member. At the same time, if the company does not have the policy to allow the employee substitute paid sick leave for family member of personal bad health condition , the employee does not have a right to do that.
Return to work
After the employee recovered from his or her illness, or after he or she released from her or his responsibility from family, employee would come back to work. The employer must let the employee return to his or her position to continue to work, or to provide an equivalent position for him or her. An equivalent position is that a job has the same benefits, the same work technical and the same requirement, actually the similar condition can be allowed. Also, when employees come back to work, the company must promise them not to be discriminated after their leave. And the employee can bring suit for it, such as lost wage and other damages.
If the employees do not want to return back after their FMLA leave, the company still needs to maintain the position for them until the last of the FMLA.
The FMLA accepts from the return to work requirement certain special situations. For example, if the company faced the big cash flow problem and the company did not have the extra money for reinstatement and the employee back will enforce it. The employer can tell the employee that he or she will not be reinstated after leave, and does not return to work. Another example, if an have to reinstate an employee returning from FMLA leave.
Certification of inability to return
Many employees may not continue to do the same work before the FMLA leave. It may cause by the bad health condition or the poor performance at the regular time. So the people need to show the certification about inability to return work.
If the employee wants to be approved, he or she need to hand in sufficient certification. What prevents the employee from working and what led to the employee’s expiring the leave date may be listed in the certification. Also it should clearly show how the bad health condition affect employee's performances and how the family members need the employees.
Wal-Mart FMLA lawsuit
A Wal-Mart was accused by employee in Oregon because the employee was to attend the surgery. Lynda deBarros had worked for Wal-Mart for 8 years she got good evaluations because of her good performance and more duties. From photo technician to assistant manager, she got promoted. And then she was transferred to a new store to look on it.
DeBarros began experiencing health problems in October 2007, of which I will let The Oregonian do the describing:
On Nov. 14, 2007, deBarros went to her gynecologist because of excessive menstrual bleeding, documents show. DeBarros has potential of the bad health condition. Her family has a cancer history, and she found out why she bleed so much and so seriously. She became worried and scared. So she did not wait to attend the surgery. She told her boss, her life became very dangers, she had no other choice because a doctor suggested her surgery. Then, she suited the company. She has the right to take surgery because it related to her life. The company said she should not take the work time when it is the busiest time.
This story gave us a lesson that when the company during the busiest season, the employee had better do not have emergency health issues. As this lady, the company need her very much in the special season, it can not work without her. All that excessive bleeding she was experiencing? Yeah, you just tough that out until the holiday shopping season is over you’ll have plenty of time for your emergency surgery after the new year. (Corey Himrod,2008)
The Family & Medical Leave Act (FMLA) required that the employer must have more 50 employees. And the employees must be given 12 weeks of unpaid leave per year. The company can be a private or public, the school, hospital and post all can be recognized as public agency.
When the employee request the FMLA leave, the employer has to show records to demonstrate the required employee has the right to have FMLA leave. The record should tell the employee whether they satisfy the required 1,250 hours. If the employer cannot show record of work hours, the employee is considered eligible to use FMLA.
The employers also need the third-party administrator to demonstrate the employee request for the leave about FMLA requests within 2 days
Another situation, if a couple worked for the same company, it is good for them. Because many companies just give them total 12 weeks of the 12 months if their child birth or child adoption. So, it may bring about some wives left the company, because she need help when she was pregnant from her husband, but her husband can not use the FMLA any more in case of the FMLA run out for the child birth and adoption.
Let us think about it, if the employee need to have FMLA leave, how did you prove them that they are entitled. So the company must keep detailed records to demonstrate their entitled. a minimum of three years of FMLA leave record is the period that the company must keep. The record need to include the employee’s name, job position, salary, benefits and address or phone number, Also, the employee’s paid leave and FMLA leave before this request must be kept in the record. Of course, the employee has some insurance payments and some credit record should be included.
If the employee's request for a leave, the leave is just a morning or an afternoon, it means a couple of hours. the employers can not reject to continue to pay for an employee's medical benefits throughout the worker's absence.
FMLA - Limited Access
The employers’ was limited by the FMLA. The employers testify employee medical records so that it can decide whether the employee can be entitled by FMLA leave. An employer can require much information about employees. The information kept in record is not enough. The employer can connect many administrators to consult and decide whether the employee is injured seriously or whether the employee needs the FMLA immediately. Some employer can not find this information. And it bring some trouble to employers. Only if the employers had the legal rights to know these information, the employer can not make a conclusion correctively. The employer can seek some information about form that can provide some information about the employees.
Case: After leave, FMLA regulations don’t require accommodation
FMLA regulations say returning employees get same pay and benefits, no accommodations.
This an employee came back to work after FMLA medical leave with a doctor’s note saying she’s fit to work part time. The company should provide her some convince, such as light duty or good work condition. But she insists she can work full-time if the company accommodates her. She asked the company to provide a accommodates for her, because she wants to do the same job.
Of course the company may want her to get back to her old job, but it not always can come true. Because the company can not let the person who have still potential health problems to do the hard work. Also the company can not provide the accommodation for the person. Because it does not include in the FMLA and the company did not have this kind of policy. So the employee suited the company.
As Employer, you must have the ability to handle these strange request from your employee. And you also should have the ability to make friendly decision
The employer according to a case that involved Courtney Green, a floor worker at athletic shoe manufacturer New Balance. A district court stated that despite her claim that she could perform a full day’s work in her former position if accommodated (she’d just had a child), Green’s only right under FMLA while in her reduced-leave employment was to the same pay and benefits she received in her former position.
(Green v. New Balance Athletic Shoe, Inc., U.S. District Court, District of Maine, No. 01-CV-60-B-S. 1/29/02.)
Another case: According to FMLA regulations, leave is no time to take a vacation
If your employees just wanted a leave for fun, and just give your reason for FMLA leave. It means you have the rights to cancel the his FMLA rights and you also can fire him. This is a case happened in a court in Alabama.
In this case the employer find his employee was to attend a camp trip for fun, but the employee claimed to look after his ill father and his father can not live without him. The employer gave him FMLA leave. Then, the employer decided to fire him. The employee turned around and sued – claiming that the employer interfered with his FMLA rights and that the employer retaliated against him for exercising those rights when it terminated him.
The employer’s motion for summary judgment was granted and the case was thrown out of court.
FMLA in hospitality
The hospitality is the industry that mainly depends on the employees.
As a HR director of hospitality, you must have faced with many situations about FMLA. As a result, the hotel must conceive some good policies to improve the worker’s work performance and reduce the leave which bring about the lack of workforce. There is some suggestions about best Practices:
Keep reviewing leave request. As human resource director, you need to focus on the request for the form of the FMLA policy. Any change of the form you need to notice. And you need to ensure all the files handed in completely.
Stay current with the law. Human resource director in hospitality not only notice the federal law, but also focus on the state law and some regulations in hospitality industry. If the FMLA changed some points, you need find it and revise your policy in hotel at once. It’s the basic require for all the human resource stuff.
As a good trainer. The director of human resource department of hospitality must train the manager team about the FMLA policy. Sometimes line managers have to make decision about employee’s attendance. They must respond to the emergency of employee’s immediately, such as if a female employee finds out her husband was in a car accident, she need to be there now. First person she can find is her line manager." The line manager must know the FMLA policy and some regulations about the emergency to help the employee and handle the rest of the things.
Maintain confidentiality. No matter what happened to employees or employers, the employers are obligated not to disclose any employee medical information.
Consider outsourcing. FMLA is not a simple regulation, it include many special situations and something can not be explained clearly by the human resource manager. The employer need outsourcing to help them know the FMLA deeper and deeper.
Attendance bonus policy. If the employee never requests a leave, why not the company gives some bonus? This policy awarded a bonus to employees who worked every day and never requested a leave. The hospitality can use this policy to encourage the employee attendance. The employees would not want to give up a bonus. So they would give up some vacation leaves and some light duty of family members. Under that policy, if a employee do not work the all the workweek, it will means that he or she gives up the bonus by himself or herself. Employees absent on vacation or for FMLA-qualifying events were entitled to a pro-rata share of the bonus based on the number of days worked. Thus, if an employee missed one day of the week for an FMLA condition, he would receive 4/5ths of the bonus. If the employee worked no days in the week (for any reason, including FMLA), he would get no bonus. The DOL found that this policy was consistent with the FMLA. That bonus was offered to all production employees in a particular department on a monthly basis. Employees were eligible for the bonus if they worked at least 80 percent of the time the shift was scheduled to work during the month. Along those lines, paid time off for witness and jury duty, bereavement leave, military leave of absence, weather days declared by the company, vacation days, and holidays not scheduled as work days by the company, were all counted as regular work days and credited towards meeting the 80 percent work-hours test for bonus eligibility. In contrast, leave without pay for any reason was not counted towards meeting the 80 percent work-hours test. In addition, although paid leave (whether or not substituted for unpaid FMLA leave) was counted towards meeting the 80 percent work-hours test for bonus eligibility, it was not included in computing the amount of the bonus. Instead, only the gross pay for time actually worked was used in calculating the bonus.
Today FMLA have been a widely usage act in the life, more and more employees began to protect themselves by the FMLA and employers started to help the employees balance the work and family life.
The goal of FMLA is to protect employees’ leave rights. So the employees are entitled the leave that covered to as much as 12 weeks in every 12-month period, in order to handle important matters like childbirth, adoption, personal illness or family medical problems. The employer has the responsibility to provide leave for the employees after finish the procedure the company required.
So as a good director of human resource, using FMLA to handle the day-to –day issues is very important. Beside, you also need to provide good method to solve the negative effects from FMLA. As the paper mentioned , the Human resource department of hospitality can make some polices, such as stay current with the law, review leave policies at least annually, attendance bonus policy. It will improve both the work quality and the employee’s satisfaction
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