This action might not be possible to undo. Are you sure you want to continue?
A study of the FMLA and its effect on the business world
For Dr. Mae Hicks Jones James Hargrave 12/5/2012
Hargrave Abstract This paper is a study of the Family Medical Leave Act and how it affects both the employer and employee. A complete study of the legal aspect and what criteria must be meet in order for employees to be protected. Further, it will demonstrate the problems that face the human resource field and the necessary information in order to overcome these obstacles. It will examine what employer’s duties are concerning request from employees for extended leave from work for medical issues. Furthermore, an examination of different scenarios will be presented in order to grasp a better understanding of how the law would look upon these issues. Information would take from multiple authors with prestigious backgrounds. Several of the prominent authors were Dessler, Mann & Roberts, Rumfill and Hennessey, who wrote the books Human Resource Management, Smith and Roberts Business Law, and Employment Issues and Multiple Sclerosis. This literate provide secondary research in order to provide a full understanding of the issue surrounding the Family Medical Leave (FMLA). The human resource department in every company needs to have a complete understanding of this law in order to ensure that both employers and employees are protected. The FMLA provide employees an extended leave from work for twelve week which guarantees the employee his or hers original job back or an equal position upon their return. In conclusion, based upon the literacy research and other sources, there is specific evidence that demonstrates the proper measures that must be taken in order to ensure that employee’s family medical requests are handled correctly. This information provides readers with being able to understand the legal terminology of the FMLA and how it is implemented in today’s workforce. These recommendations help to provide clarity upon tough to discern issues when it comes to allowing or denying employees request. By having a clear understanding of what employers this law covers and what criteria’s employees must meet in order to protect both parties and allow satisfactory conclusion. 1
Hargrave Introduction The workforce in the United State is constantly changing and undergoing new regulation. One of the most recent regulation changes, in the human resource section, that has had a huge impact upon organization across the country, is the Family Medical Leave Act. It was implemented into the United States work force was designed to protect employees when a medical emergency for themselves or family members has occurred. Congress passed the Family Medical Leave Act (FMLA) and it was signed into law in 1993 (Dressler, 2012). Previously, some companies were replacing employees upon having a medical emergency in order to continue their production as its normal pace. However, this was leaving employee unprotected, after dealing with the issue that had occurred, and wanting to return to the workforce they quickly find that they were no longer employed. In many cases, employers made promises that the employees took and then retracted their previous statement. Employers have a duty to treat their employees with respect and not allowing them time off to deal with life altering medical issues is unethical. However, Congress did not want to give too much power to employees. They could not evoke a medical leave without any cause or reason. Their solution called for an approval process where the employee has to provide a written request for the allotted amount of time off. Then employers have the right to request documentation and other evidence to conclude that the employees request has not been made under false pretense. However, if an employer denies the Family Medical Leave Request, there can be grave consequence if it is later concluded by the U.S. Department of Labor that the employee was protected under the FMLA. Reasons to Evoke the FMLA Employers must give every request careful and complete consideration in order to ensure that they are upholding the demands of the law. The human resource department needs to document the conversation with the apply individual, along with the written request for the family medical. Them, if 2
Hargrave needed, the human resource manager will request the needed documentation in order to provide proof of their request. In determining if the request is protected under the FMLA you need to first know what the reason for the absence of work is. The FMLA protects employees who need to take care of a child after the birth, or for the adoption of a child (Dessler, 2012). However, it does not include pregnancy as the Pregnancy Discrimination Act fulfills that issue. The other reasons that are protect under the FMLA is to care for a spouse, son, daughter, a parent, or for the employee if they have a serious medical condition that requires their attention (Dessler, 2012). However, the problem for Human Resource departments and employees is to understand what is classified as a serious medical condition and is protected by the FMLA. The FMLA defines a, “serious health condition” as "illness, injury, impairment or physical or mental condition" that requires hospitalization, care facility, or a constant medical provider (Manns & Roberts, 2000). This is designed to ensure that employees will not take advantage of this program in order to have extended periods of time off. They must prove that a family emergency has occurred and that they have meet the criterion that was placed in the law. Requirements to Meet the FMLA Even if an employee does meet the criteria for the reason for leaving, there are many other factors that must be met in order to be protected under the FMLA. First, the employer must meet certain provision in order to qualify. The FMLA only applies to employers that have fifty employers or more on the payroll for at least twenty month and if a company is less than fifty employees than they are not protected by the FMLA However, if the company has less than fifty employees at one site, they must still abide by the FMLA if they have more than fifty employees in a seventy five mile radius (Rumfill & Hennessey, 2008). Second, employees must have work at least twelve months for the employer. One cannot simply join the company and within a month request for the twelve weeks off. This law is designed to give loyal employees theses rights. These twelve months do not have to be consecutive, as a
Hargrave part time worker who has worked more than twelve weeks nonconsecutive would be applicable (Rumfill & Hennessey, 2008). However, another restriction is that in the time frame of the last year, employees must have worked at least one thousand two hundred and fifty hours to qualify FMLA. An often debated section of the FMLA is does it provide paid leave. At no time does the FMLA provide or require any paid leave as this only protect unpaid leave. However, employees can require that all paid vacation and personal day be used (Mann & Roberts, 2000). Sometimes companies insist on making employees with family medical leave request to use their vacation and personal days because it provides income to them while they are gone and it provide insurance that once they return they cannot again go on vacation and leave them shorthanded again. Businesses still need the right to protect their self and an employee that uses every opportunity to leave can damage the organization. If employees choose to use their personal and vacation doing their absence or if the employers requires them to use them it will still be consider part of the twelve weeks that they get. Once the request has been approved and accepted, they have their twelve weeks and if they use their vacation/h day to receive pay or choose not to use them, if given the option, has no effect on their return timeline as they still get twelve weeks. In order to qualify for the extended period of leave from work, another requirement is to fulfill the necessary paperwork. Employees must provide advance notice of leave thirty days in advance when the medical leave is “foreseeable” (Dessler, 2012). However, if it is not “foreseeable” such as a bad car accident or heart attack then the FMLA will still cover the employee. Also, someone, on behave of the employee, can make the request for leave. When the request is made, the employer may ask for needed medical certification in order to ensure that this is indeed a real serious health issue. If the seriousness of the health issues is in question, the employer may get the consultation of a second and third opinion from other doctors in order to verify the condition and provide evidence that this is indeed a major
Hargrave health risk. This is of course at the cost of the employer and the individual is under no obligation to pay for these second opinions. Last, employers may also require a fitness for duty report from a doctor that ensure that they are fit and are able to resume normal business duties (Dessler, 2012). This allow the human resource department to ensure that the employee does not come back too soon before they are fully healed and it helps to protect them in case an injury occurs to the employee right after their return. It is important for employees to plan ahead and make sure that they have completed all the necessary documentation in order to ensure that they have been approved for the extended medical leave. An example of a normal extend medical leave is provided by the U.S. Department of Labor. This document is voluntary and it is shown below:
Hargrave Benefits, Unlawful Acts, & Enforcement The Family Medical Leave Act (FMLA) not only provides the guarantee that an employee can return to their original job or an equal position with a twelve week medical leave but it also ensures that employers cannot remove their health insurance during this time period. There are documented cases of employees removing health insurance from their workers as they considered them fire which was unjustified as they were protected under the FLMA. The employer health insurance plan often occur great expense during this time as their workers are having to see physicians and specialist that concern a serious health risk and the bills can quickly add up. This can result in insurance premiums going up on the company and this can quickly become a huge increase in expense for them. The FMLA provide protect that employees gone during their leave from work by enforcing employers to keep employees on the group insurance plan (Rumfill & Hennessey, 2008). The FLMA takes even a step further, as it make sure that the employee cannot lose any benefits because of the employees leave. This could include vacation days or bonus opportunities but simply because the employee took a medical emergency leave does not give employers the right to remove part of their compensation package upon return to work. Another provision of the FMLA is that it outlines multiple actions that are illegal by employers when it comes to this piece of legislation. First, it highlights that it cannot deny anyone that meets the requirements their extend stay. However, it goes further in that they cannot interfere or attempt to restrain any of the rights that are allowed on this law. Last, employers cannot, “discharge or discrimination against any person for opposing any practice made unlawful by the FMLA” (Dessler, 2012). These rights are protected by the U.S. Department of Labor. They are given the job of investigation any complaints and resolving the issues. They can be contact via their website at www.dol.gov which has information that allows you to contact them through several mediums.
Hargrave Furthermore, an eligible employee can also take their company to civil court to ensure that their rights are protected. Most legal experts say that filing a complaint via the U.S. Department of Labor as the first step to resolving the issue. In a recent case, a state employee filed a lawsuit against the federal government claiming that they have denied him his medical to a medical leave for a serious health issues. However, in a 5 to 4 close vote, the Supreme Court denied him this as they state employee cannot bring a lawsuit against the state ran government. It is noted that employees can bring a law suit against private employer (Liptak, 2012). This would indicate the federal and state employees need carefully considered the advice from legal experts before looking to take the government to court. Decisions have been made on for both sides and it is difficult to predict who would win. This issue of enforcing of the FMLA on state and federal government is still a hotly debated topic. FMLA Issues Facing the Human Resource Department The Family Medical Leave Act was only implemented back in 1993 and so far there have been many issues resolved concerning this law. However, there are still several problems that are raised by the human resource department from companies across this country which continues to worry and frustrate them. The Society of Human Resource Management, a business magazine and information experts that write primary on this field of business, claims that more clear rules are needed in order to provide more instruction on problems with no set solutions. The first major issue that they believe needs attention is to return the meaning of “serious health condition” back to its original meaning when the law was passed in 1993. There have been several changes to the original wording which has resulted in make less clear cases. The added terminology was designed to add other scenarios but it is making it more difficult to translate and now medical issues that were not originally intended to be classified as a “serious medical condition” meets the criteria (Miller, 2007). Another issue that is providing problem is that the Society of Human Resource Management is attempting to fix is that fix the definition of
Hargrave “intermittent leave”. Currently, intermittent leave only records full days as part of the leave and the need to streamline it to include half days would result in employees not taking advantage of the time off and putting employers in difficult situations (Miller, 2007). These are two issues that are currently being faced that need Congress to take a look at in order to see if it would be beneficial to look at make small changes in the current law. The problems for the Human Resource Department do not stop there. In a survey done the Society for Human Resource Management in 2007, they found that 39% of human resources managers believe that they have granted a false claim. The reason given for why they approved the request was mainly because they could not determine if this request was protected by the FMLA. Other reasons were that under the legislation, the individual meet all the requirement but had falsified some information. However, this could not be proved without a large amount of funds and time. Last, many human resource department are overloaded with many other activities that they cannot keep track of leaves. Often employees overstay their twelve weeks or company policies amount of time off and they are unaware of it. However, many companies give employees more time off then what it required under the FMLA (Miller, 2007). One of the biggest challenges that a human resource director must meet is getting a “timely” notice for the request for time off. Often employees know in advance for certain medical issues, such as the birth of a baby. However, when serious medical condition occurs quickly, the average time of notice given to the HR Department was one week (Miller, 2007). This puts pressure on the Human Resource department to be able to quickly find replacement or switch position in order to cover the position. Also, the U.S. Department of Labor has recently changed the form for the extended medical leave in 2009. The new changes now have different disclosure and other information depending on the reason that the employee is making the request (Schappel, 2012). Case Study: Nevada Department of Human Resource V. Hibbs
Hargrave In 2003 a major case arose that brought for the entitlements of a Family Medical Leave Act along with the 14th Amendment of the constitution. William Hibbs, who worked for the department welfare division, sought leave from the state in order to help his wife recover from a car crash. His request was accepted and under the FMLA he was given twelve weeks off. However, after the allocated twelve weeks, Mr. Hibbs did not return to work. After several notices were sent to him, he was terminated. Mr. Hibbs brought forth a lawsuit for an injunction and damages. However, the original courts ruled that the state was award immunity by the 11th amendment which barred the FMLA claim and his 14th amendment rights were not violated. However, upon appeal by the plaintiff the appeals court found in favor of him that he could bring a lawsuit against the state concerning the FLMA. Specifically, the appeals court found that the terminology in the in the FMLA indicated that all employees, both private and government, were subject to these laws. While, this court did not find in favor of the lawsuit, it was ruled that he was able to take his original claim to court against the state. As there has been decision on both side of this law, the Supreme Court recently ruled against this court decision (Liptak, 2012). This would indicate that in the future state and federal government employees would be unable to file a claim against their employers using the FMLA. Conclusion The Family Medical Leave Act is a law that is designed to provide employees with more rights against their employers. It is an attempt to provide a balance that protect individual when medical emergency arise. It allows them to deal with these personal issues without unethical treatment by employers. However, it does not put the burden on the employer. Employees are the one that must file the request and provide the documentation. Then it is up to the employer to accept it if it meet the requirements of the FMLA. While, there are some request which are difficult to tell if they should be approved many company choose to try to help their employee and act in good faith in order for the
Hargrave betterment of their workers. However, the requirements to meet this protection vary and employers and their human resources department need to have a solid understanding of the procedures that need to be followed. There are multiple issues that can occur for the human resource department when dealing with the FMLA and knowing how to handle these situations will result in proper care and protection from any resulting legislation action. Being able to understand the FMLA and its provision will result in solid communication between these two parties and a well set system in place to deal with these request by employees.
Hargrave Work Cited Mann, R., & Roberts, B. (2000). Smith & Roberson's Business Law. (11th ed.). Cincinnati: West Legal Studies in Business. Dessler, Gary. Human Resource Management. 13th ed. Boston: Pearson Learning Solutions, 2012. Print. Page 384-385 Rumfill, P., & Hennessey, M. (2008). Employment Issues and Multiple Sclerosis. (2nd ed.). Demos Medical Publishing. Clarkson, Kenneth W., Roger LeRoy Miller, and Frank B. Cross. Business Law, Text And Cases: Legal, Ethical, Global, And Corporate Environment. 12th Ed. South-Western Pub, 2012. 54-73. Print. Liptak, A. (2012, March 20). Justices limit suits filed over family leave act violations. NY Times. Retrieved from http://www.nytimes.com/2012/03/21/us/supreme-court-limits-lawsuits-over-familyleave-act.html U.S. Department of Labor, (n.d.). Contact information. Retrieved from website: http://www.dol.gov/ Miller, S. (2007, March 12). Most HR Professional Report Problems with FMLA. Society for Human Resource Management, Retrieved from http://www.shrm.org/Publications/HRNews/Pages/CMS_020829.aspx Schappel, C. (2012, March 05). DOL Issues NEW FMLA Form: What’s Changed? HR Morning, Retrieved from http://www.hrmorning.com/dol-issues-new-fmla-forms-whats-changed/ U.S. Department of Labor, (2009). Family Medical Leave Act (FMLA). Retrieved from website: http://www.dol.gov/compliance/laws/comp-fmla.htm Nevada Department of Human Resources ET AL V Hibbs ET AL. (2003). Retrieved from http://scholar.google.com/scholar_case?case=11067384715385470857&q=Famly medical leave act cases&hl=en&as_sdt=2,26
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.