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Project Topic Research – The FMLA Policy
The US Congress passed the Family and Medical Leave Act (FMLA) of 1993 in order to stabilize the loads of employment with the essentials of families. It aims to encourage the economic strength and security of families. Also, it aims to encourage, on a national scale, the interest in upholding family integrity. Most importantly, it aims to decrease the probability of employment discrimination based on gender. These goals can be achieved by generally certifying that leaves are offered for eligible medical reasons such as maternity-related situations, disability, and compelling family reasons. This means that the act is in support of the equal employment opportunity objective (Office of State Human Resource; Asher and Lenhoff 117).
The FMLA specifies three reasonable dues. The first detail is for the birth and care of a newborn child. It is intended for foster parents who have health risks as well as for employees with serious health conditions. It can also be applied for the adoption settlement of a child. The second detail is the Qualifying Exigency Leave. This benefit covers members of the families. The third detail is the Military Caregiver Leave (Office of State Human Resource; Asher and Lenhoff 117).
The terms covered by the FMLA policy may be divided to three categories, namely the involved parties, the health conditions, and the working conditions.
The first category concerns the involved parties. They are composed of the parent, the child, and the spouse. There are set eligibilities for each. The parent is pertained to as the biological parent of the child, although a parent can also refer to a foster, adoptive, or step parent. In addition, the individual who represents in loco parentis is also counted as a parent, especially when the employee is a child. However, the one exemption is the in-law.
The child, on the other hand, is pertained to as either a biological or adoptive child under the age of 18 or one who is incapable of self-care due to health conditions. A foster child, stepchild, legal ward, or the child with the parent in loco parentis is also considered a child. In particular, a foster child acts as if they were a child of the employee who in turn fulfills their parental obligations. A stepchild is the child of the employee’s legal partner from a previous marriage while a legal ward is the child that the court cited under the guardian’s care.
Lastly, a spouse or legal partner is either the husband or wife that a state acknowledges.
The second category concerns the employees’ health conditions. The terms involved are incapability of self-care, physical or mental disability, serious health condition, incapacity, treatment, and the healthcare provider. An individual would be deemed incapable of self-care when he or she cannot perform activities of daily living such as maintaining their health and hygiene through eating and grooming, respectively. Incapability is likely brought about by physical and mental disability, specifically referring to any physical or mental deficiency that limits an individual’s key life activities, as indicated in 29 CFR part 1630 of the Equal Employment Opportunity Commission. Physical and mental incapability is also stated in the Americans with Disability Act or ADA and may come in various forms, depending on the individual’s condition. They can be attributed to injury or illness that needs to receive inpatient care and continued treatment from health care providers. Incapacity, on the other hand, refers to the circumstance where an individual cannot perform their daily activities because of serious health conditions, in turn requiring treatment and recovery. Treatment is particularly the set of examinations that determine the existence and evaluation of a serious health condition. Apart from regular physical exams, treatment is pertained here as the maintenance of the patient’s health condition, which includes medications or therapy that the healthcare providers have exclusively set. The healthcare provider is the certified doctor who is in charge of treating an individual’s health condition. He or she may practice medicine and surgery, given that the said doctor is identified through statute, credential, or licensure (Office of State Human Resource).
The third category concerns the individual’s working conditions. The terms used are workweek, reduced work schedule, intermittent work schedule, and 12-month period. Workweek refers to the particular hours that an employee is scheduled to work in a week, inclusive of holidays. Reduced work schedule refers to a schedule of work that has fewer hours than an employee regularly has. Intermittent work schedule, on the other hand, is a schedule of work where an employee has an irregular schedule, resulting from the employee taking dispersed rather than continuous leaves. Such incidents take place when an employee needs to undergo recurrently scheduled medical treatments because of a qualifying reason (Office of State Human Resource).
FMLA Leave Approval
Companies have various things to consider in developing and implementing the policy. Covered employers are responsible for informing employees who request for leaves about their eligibility under the FMLA. If an employee is deemed eligible, the employer would prepare a notice, which specifies pertinent and additional information about the employee’s leave, as well as about the employee’s rights and responsibilities. In the event that an employee is not eligible, the employer would have to indicate a reason for the ineligibility. The covered employers would then inform employees of whether the leave would be labeled FMLA-protected. In addition, the calculated number of leaves, along with the employee’s leave entitlement, would be indicated. In the event that the employer concludes the leave to not be FMLA-protected, the employer would have to inform the employee about this situation (WHD Publication; Wage and Hour Division).
Employees’ Rights and Responsibilities
The employers must be knowledgeable about the employee’s rights and responsibilities. As mentioned, there would be times when the employers would be required to file documents that indicate such. In particular, there are six employee’s rights and responsibilities.
Basic Leave Entitlement
Covered employers are obliged to provide up to 12 weeks of job-protected, unpaid leaves to eligible employees for four reasons. The first reason that can be considered is incapacity due to pregnancy, prenatal medical care, or childbirth. The second reason is the necessity to look after the employee’s child after birth, which may include the settlement for child adoption or foster care. The third reason is the necessity to look after the employee’s parent, spouse, or child who suffers from a serious health condition. The fourth is for the employee who may be going through a serious health condition and who is unable to perform his or her job (WHD Publication; Wage and Hour Division).
Military Family Leave Entitlements
Employees who are eligible include those who are on active call or duty or those who are on active duty and who are a parent, spouse, or child. They would be able to utilize up to 12 weeks of leaves. This entitlement addresses definite qualifying exigencies such as attending military events, counseling sessions, and post-deployment reintegration briefings. This can also include making arrangements for alternative childcare services, as well as making arrangements for financial and legal matters.
A special leave entitlement can be included through the FMLA. It authorizes employees who are eligible to take as much as 26 weeks of leave. This benefit enables them to look after a covered service member in a particular 12-month period where a covered service member pertains to a present member of the Armed Forces, National Guard, or Reserves and veterans and who is undergoing medical treatment, therapy, or recuperation. An outpatient, a service member with temporary disability, or someone in the retired list for a serious injury or illness is not included as the FMLA covers only the health conditions and medical treatments that require inpatient care (WHD Publication; Wage and Hour Division).
Benefits and Protection During an FMLA Leave
The employer must sustain the health coverage of the employee in any “group health plan” under the assumption that the employee would continue to work. When the FMLA leave has ended, employees would return to their original or equivalent jobs with corresponding wage, benefits, and other occupational terms. The use of an FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave (WHD Publication; Wage and Hour Division).
Employees would be deemed eligible if they have worked for at least 12 months under a covered employer. In 12 months, the employee must have completed 1,250 hours of service. The flight crews, however, would be gauged based on their special hours of service. Those employees who work for covered employers who have at least 50 employees living within 75 miles are also eligible (WHD Publication; Wage and Hour Division).
It is not necessary for an employee to use their leave entitlement at once. Leaves may be availed of either on a reduced leave schedule or intermittently, especially when they are used for medical purposes. In this regard, employees are responsible for planning and scheduling their leaves for medical treatment in order to avoid unnecessary disruptions on the business operations. Leaves that are availed of through the qualifying exigencies can also be taken on an intermittent basis (WHD Publication; Wage and Hour Division).
Substitution of Paid Leave for Unpaid Leave
It is possible for either an employee to choose or the employer to require the use of the employee’s accrued paid leave while availing of the FMLA leave. In order for the employee to utilize their paid leave in place of their FMLA leave, employees would have to comply with the regular paid leave policies set by the employer. On employee responsibilities, the employees would have to provide an advance notice of 30 days regarding their need for availing of the FMLA leave, that is, when the need is anticipated. In case the advanced notice would not be possible, the employee would have to provide notice at the soonest practicable time (WHD Publication; Wage and Hour Division).
In general, the employee would have to comply with the regular call-in procedures set by the employer. Employees must provide adequate information in order to enable the employer to determine if the leave would be eligible for FMLA protection. This is also applicable for the anticipated duration and timing of the leave. It is important to note that adequate information includes the incapability of performing the job; a family member being incapable of completing their daily activities; the necessity for hospitalization or ongoing treatment from a health care provider; or circumstances pointing to the necessity for military family leave. Furthermore, employees must notify the employer that the requested leave is for a previously taken or certified FMLA leave. Employees would be obligated to deliver a certification in support of the need for the leave (WHD Publication; Wage and Hour Division).
Violations of the FMLA Leave
The FMLA considers it unlawful for employers to interfere with, deny, or restrain the practice of any right specified in the FMLA. Moreover, the FMLA makes it unlawful for employers to discriminate against or discharge any person for challenging any exercise declared as unlawful through the FMLA, including involvement with any proceedings in or related to the FMLA. The procedure for enforcement indicates that an employee can file an objection to the U.S. Department of Labor. The employee can also file a private lawsuit against an employer. The FMLA neither affects any state or federal law that bans discrimination nor does it supersede any local law, state law, or collective bargaining agreement that offers greater FMLA rights (WHD Publication; Wage and Hour Division).
It is important for the employers to keep such provisions in mind. There have been two cases in the state of Ohio on this matter. In the first case, the Metroka-Cantelli v. Postmaster Gen case, the employer, the United States Postal Service or the USPS, allegedly interfered with the FMLA rights of the employee Bobbie Metroka-Cantelli through her termination before she was able to take her FMLA leave. The case proceeded to trial where the issue tapped on whether the employee Cantelli would be terminated regardless of her notification to USPS that she would intentionally file for the FMLA leave. The other case was the Nelson v. Clermont City, Veterans Service Commission case. This case was between the employee Kris Nelson and the employer Veterans Service Commission or VSC. Nelson argued that the explanation of VSC was pre-textual. The employer seemed not to follow their own procedures. Both cases denied the employers’ bid for summary judgment (Jodka).
In order to come up with our own policy, we have sought two distinct sample policies, each coming from two companies, namely the FMLA policy of Wooden McLaughlin LLP, a law firm (Wooden McLaughlin,) and the Family & Medical leave policy of the Dow Chemical Company, a multinational chemical corporation (The Dow Chemical Company).
The first type of policy – the FMLA policy of Wooden McLaughlin LLP -- is similar to a property rental agreement, which indicates the role of the employer as well as a disclaimer downplaying the expectations about the policy providing greater rights than the FMLA. There are 11 sections found in the document, which include the types of leave, eligibility, amount of leave, continuous and intermittent FMLA leave, pay and benefits, reinstatement, notice of need for leave, certifications, FMLA and “Light Duty”, Supplemental Employment, and Enforcement. We looked into what “Light Duty” means, as we have not encountered such term while researching for the past section of this study. It stated that through “Light Duty”, two options would be made available for the employee. Either the employee would remain in FMLA leave until all numbers are exhausted or the employee would accept light duty work while in such leave. When the employee turns down the light duty work, the employee would not be eligible to compensation and benefits. When the employee accepts light duty work, the employee’s right to return to their equivalent position would expire when the 12-month FMLA leave year has ended (Wooden McLaughlin LLP).
The second type of policy – the Family & Medical Leave policy by the Dow Chemical Company -- is presented through certification forms. All the personal, health, and healthcare information must be filled out. There are boxes to check for a more convenient assessment of the employee’s capacity and limitations. There are mechanics, terms, and conditions indicated at the end of the policy. Presented in sections, it includes the terms and conditions on inpatient care; incapacity and treatment; pregnancy ad prenatal care; chronic conditions; permanent or long-term conditions; conditions requiring multiple treatments; and absences attributable to incapacity. On these parts, the crucial terms are defined. An example is a serious health condition being given 7 definitions. The more important learning we gained in this sample is that the company separated the certification form for family medical health and employee health (Dow Chemical Company).
The first policy gave us an idea on creating contents while the other shared with us a context or a way to present such complicated act in a more comprehensible document. What we are aiming for our own policy is a balanced combination of both. We have realized that coordinating and organizing such a policy would be of big help to business operations. Other than helping the company avoid court cases, this policy would enable the company to improve its bottom line. This is seen in the state of California after the law was established. Workers were less stressed, which meant better productivity (National Partnership for Women & Families).
At the same time, we would want to shed light on a concern that is turning into a national threat. The workers who would be having a baby are the ones having a difficult time attending to both the mother and the child’s demands especially on financial matters. In this regard, a worker would need time, effort, and especially money to raise their child. This is more alarming when the worker is the mother. Without policies that would protect working mothers, their income would cease during and right after the pregnancy. Like a domino effect, families’ financial instability would haunt the government (Popovich; Miller).
We would like to take from the previous bits of information on paid leaves. We deemed it would significantly help the supposed business we have chosen to write the policy for. In one of the sources about the issue, a shipping company allegedly discriminated a working mother about her pregnancy such that she would not be able to keep away from lifting heavy packages. The more concerning circumstance was that she still worked despite her condition. It turned out that she was uncertain of the company’s maternity leave benefits (Popovich).
Despite the concern, improvements on provisions continue. In January 2012, the US Department of Labor released a final rule in expanding the FMLA leave. This is, however, specifically established for flight crews and military caregivers. Its implementation utilized statutory amendments (Nowak). We noticed that the working mom from the issue has similar working circumstance as that of the workers in the expanded FMLA leave. With this, we settle in developing a policy and implementation plan that surrounds the issue of paid parental leave in an environment such as the military, flight industry, and shipping industry.
In particular, we would develop a policy for a hypothetical shipping company called Ripple. We would come behind the expanded FMLA leave to ensure the proper implementation of the policy. However, the highlight of the policy is the paid parental leave. As the primary caretaker of the baby, only the pregnant working mother would be eligible to file for this leave. Once her pregnancy is confirmed, she would immediately be asked to file a certification form for the 15-month long leave, which is exclusive of the 12-week government-mandated leave that all employees are entitled to. The period is considerate of the employee’s current phase as well as of her condition immediately after the pregnancy. The schedule would have to complement the recommendation of the healthcare provider. The pay would be depending on the income capacity of the family. If the mom were the sole worker of the family, the pay included on the leave would be equivalent to her regular wage. In return, she would have to commit to a lock-in agreement. This agreement indicates that she would have to work for the company for a longer definite period, which is at least equivalent to the availed paid leave. In the event that she would not complete this lock-in period, she would have to return the balance that the company has rendered.
Statement of purpose
Our policy is designed to provide our company’s working mothers with the assistance they need during pregnancy and childbirth. This assistance aims to provide them with financial, emotional, and moral support during this critical time of their life, in turn ensuring her and her child’s wellbeing, and also providing her with a sense of job security.
Employee Population Covered
This policy will cover female employees, married or unmarried. It can be availed of for reasons of pregnancy, childbirth, and other reasons related to such, which include checkups and medical exams.
It is our company’s responsibility to grant our female employees with their leave entitlements, provided that they meet the necessary requirements. It is also the company’s responsibility to reinstate the employee to their jobs or an equivalent job at the time that their leave ends.
On the other hand, the employee is prevented from accepting employment from another company during the time of her leave. Moreover, she is obliged to resume her job in the company after her leave ends. In the event that she accepts paid leaves after the first 12 weeks, she will be obliged to work for the company for the duration equivalent to the number of paid leaves she used, which are in excess of the 12-week government-mandated maternity leave benefit. If, for any reason, she is unable to do so, she will be obliged to pay off her remaining balance in monetary form.
This policy provides our company’s female workers with the following leave entitlements:
The employee can file for paid maternity leave of up to 15 months (60 weeks) in addition to their 12-week government mandated maternity leave.
The employee will continue to receive a salary during the duration of her leave even after the 12th week, the amount of which depends on her family’s income capacity. Employees who are the sole workers in their families are entitled to receive their full salaries during the leave.
The employee will be reinstated to her job upon termination of the leave. If it is not possible for her to be reinstated to her old post, the company shall assign her to another post that most closely matches her previous job description and compensation.
If the employee is assigned to another post once she resumes work, she shall be given the option to go back to her old post once that post becomes available
Once the employee has finished paying off her paid leaves (i.e. those in excess of the 12-week government mandated maternity leave) either by working in the company for the required length of time or by paying it off in monetary form, the employee shall be released from the lockdown agreement and shall be allowed to seek employment elsewhere if she so chooses.
This policy shall be enforced through the following procedure:
The employee files a request for leave.
The employee provides her immediate supervisor with the leave form, along with the
medical certificate of her pregnancy, which includes her doctor’s recommendation on the duration of the leave that she needs, as well as a recommendation on the start and end dates for this leave. If needed, the employee must also submit documents to show her family’s income capacity. This request should be filed at least 30 days prior.
The supervisor evaluates the leave request.
The employee’s immediate supervisor evaluates the employee’s request for leave,
as well as the documents supported, to determine whether the employee is eligible to file for the leave. The supervisor may ask the employee to submit other requirements, if needed.
The supervisor approves or disapproves the request for leave.
The supervisor informs the employee about the approval or disapproval of her leave
request. If the request is approved, the employee is asked to sign the lockdown agreement, which the supervisor forwards to the HR department for processing.
The employee resumes work.
The employee is asked to sign documents, ascertaining her resumption of work and of her acceptance of another position in the event that her old post is not available.
The lockdown agreement is terminated.
The lockdown agreement between the company and the employee is terminated either after she completed working for her paid leaves or after she has paid them off in monetary form.
The implementation of the policy will be communicated to the employees via email, the company newsletter, and the company town hall meeting.
Employees will be provided with orientations on the new policy. Each department will be oriented separately in order to give employees the opportunity to raise any questions or concerns they may have. Training on the policy will also be included in the new employee orientation being given to new employees. Members of the HR Department will be responsible for organizing and conducting the trainings.
The following documents are required:
Medical certificate for the employee’s pregnancy, which includes the doctor’s recommendations for the start and end dates of the leave.
Leave form, signed by the employee and her supervisor
Financial documents showing the employee’s household income and income capacity
Lockdown agreement upon approval of the leave
Note and advice of return to work form when the employee is ready to resume work
Lockdown release form upon the employee’s complete repayment of her paid leaves.
The immediate supervisor serves as the point person for both the employee and the
Human Resource department. This means that the employee cannot go directly to the HR Manager for her leave concerns. In the same manner, HR cannot communicate details of the employee’s leaves directly to the employee without her supervisor’s approval. If such approval is unnecessary, then HR should ensure that the supervisor is aware of any communication between the employee and HR.
Asher, Lauren J., and Donna R. Lenhoff. “Family and Medical Leave: Making Time for Family is Everyone’s Business.” Princeton University 11.1: 115-121. Print.
Jodka, Sera. “Two Ohio cases highlight that when it comes to the FMLA, employers need to set their radars to detect potential interference claims.” Porter Wright Morris & Arthur. 2013. Web. 5 Feb. 2015. <http://www.employerlawreport.com/2013/12/articles/leave- administration/two-ohio-cases-highlight-that-when-it-comes-to-the-fmla-employers- need-to-set-their-radars-to-detect-potential-interference-claims/>
Miller, Claire Cain. “The Economic Benefits of Paid Parental Leave.” The New York Times. Web. 6 Feb. 2015. <http://www.nytimes.com/2015/02/01/upshot/the-economic-benefits- of-paid-parental-leave.html?_r=0>
National Partnership for Women & Families. “Paid Family and Medical Leave: Good for Business.” Web. 5 Feb. 2015. <http://www.nationalpartnership.org/research- library/work-family/paid-leave/paid-leave-good-for-business.pdf>
Nowak, Jeff. “DOL Issues Final Rule Implementing FMLA Amendments Expanding Military Family Leave and Leave for Airline Flight Crew Members.” Web. 6 Feb. 2015. <http://www.fmlainsights.com/dol-issues-final-rule-implementing-fmla-amendments- expanding-military-family-leave-and-leave-for-air/>
Office of State Human Resource. “State Personnel Manual.” Web. 5 Feb. 2015. <http://www.oshr.nc.gov/Guide/Policies/5_Leave/Family%20and%20Medical%20Leave. pdf>
Popovich, Nadia. “The US is still the only developed country that doesn’t guarantee paid maternity leave.” The Guardian. Web. 6 Feb. 2015. <http://www.theguardian.com/us- news/2014/dec/03/-sp-america-only-developed-country-paid-maternity-leave>
The Dow Chemical Company. “Family & Medical Leave.” Web. 5 Feb. 2015. <http://www.dow.com/familyhealth/work/work.htm>
WHD Publication. “Employee Rights and Responsibilities under the Family and Medical Leave Act.” 2013. Web. 5 Feb. 2015. <http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf>
Wage and Hour Division. “Employee guide to the Family and Medical Leave Act.” Web. 5 Feb. 2015. <http://www.dol.gov/whd/fmla/employeeguide.pdf>
Wooden McLaughlin, LLP. “Sample FMLA Policy.” Web. 6 Feb. 2015. <http://www.woodmclaw.com/pdf/NewsletterPDFs/Sample_FMLA_Policy.pdf>
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