Jeffrey Higginbotham, J.D.
Special Agent
Legal Instructor
FBI Academy
Recently, Congress enacted and the President signed a new
Federal statute--the Family and Medical Leave Act of 1993 (FMLA).
The act may require law enforcement administrators to modify
certain departmental leave practices.
This article provides an overview of the FMLA, followed by a
more thorough analysis of its requirements and the potential
impact on law enforcement agencies. It also sets forth a sample
policy to guide agencies in light of the FMLA. (1)
OVERVIEW
The FMLA became effective on August 5, 1993, (2) and applies
to all public employers, regardless of the size of the agency.
(3) Under the FMLA, persons who have worked for their employer a
total of 12 months and at least 1,250 hours during the year
preceding the start of any qualifying leave are entitled to take
up to 12 weeks' leave in a 12-month period (4) for:
1) Care of a newborn child
2) Adoption of a child or placement of a child in the
employee's foster care
3) Care of a son, daughter, spouse, or parent who has a
serious health condition, or
4) A serious health condition that makes the employee unable
to perform the functions of the job. (5)
While the employee is on leave, the employer is obligated to
"maintain coverage under any `group health plan'...for the
duration of such leave at the level and under the conditions
coverage would have been provided..." if the employee had not
gone on leave. (6) On return to work from FMLA leave, the
employee is to be restored to the position held when the leave
began or to an "equivalent position with equivalent employment
benefits, pay, and other terms and conditions of employment." (7)
Employers who violate the FMLA are liable in damages for any
wages, salary, employment benefits, or other compensation denied
or lost, or for any actual monetary loss sustained by the
employee where leave was denied, up to an amount equal to 12
weeks of the employee's salary or wages. (8)
IMPACT ON LAW ENFORCEMENT AGENCIES
Childbirth, Adoption, Foster-Care Issues
Eligible employees are entitled to take leave upon the birth
of a child, the adoption of a child, or the placement of a child
with the employee for foster care. Any such leave must be taken
within the first 12 months (9) and can be taken intermittently
only if the employer permits. (10) If both husband and wife work
for the same employer, they are entitled to take a combined 12
weeks of leave for the birth, adoption, or foster-care placement
of a child. (11)
Care for Family Members
Under the FMLA, an employee is entitled to take up to 12
weeks of leave to provide care for a spouse, son, daughter, or
parent (12) who has a serious health condition. Child care leave
is available to care for a child with a serious health condition
who is under the age of 18 or, if older, is "incapable of self
care because of physical or mental disability." (13)
The law does not require leave be made available to care for
family members with routine illnesses or short-term ailments that
would normally be covered by the employer's sick leave or
personal leave policies. Family care leave under the FMLA is
available only for serious health conditions involving (a)
"inpatient care in a hospital, hospice or residential medical
care facility," (14) or (b) continuing treatment by a health care
provider. (15)
Where inpatient treatment is not required, the family member
must have been absent from work, school, or normal activities for
more than 3 days and have received treatment from or under the
direction or supervision of a health care provider or
practitioner on two or more occasions. (16) Medical treatment
received on a voluntary basis or for cosmetic purposes that are
not medically necessary is excluded from the coverage, unless
inpatient care is required. (17) Thus, orthodontic care,
treatment for acne, outpatient cosmetic surgery, or minor illness
not involving medical treatment are not covered. Examples of
conditions for which family leave would be available include
heart attacks, strokes, pneumonia, severe arthritis, prenatal
care, stress, and substance abuse treatment. (18)
An employer who receives an employee's request for leave to
care for a family member may require the employee to provide
certification from a health care provider that the employee is
needed to provide care, physical assistance, or psychological
support. To be eligible for family care leave, the assistance to
the family member must be provided by the employee, not by a
nurse, nursing home, or personal aide. (19)
An employee who is needed to care for a family member with a
serious health condition and who provides the requested medical
certification may take the leave on an intermittent or reduced
work schedule basis when medically necessary. (20) That is, the
employee may need FMLA leave for only a few days or hours in a
given workweek or can work part-time.
Where intermittent leave for planned medical treatment is
needed, the employee must attempt to schedule it so as not to
disrupt the employer's operations. (21) Where the employee holds
a position that does not accommodate a reduced work schedule or
irregular attendance, the employer may require the employee to
transfer to an alternative position, with equal pay and benefits,
that better accommodates the recurring leave. (22)
Leave for Self-Care
The FMLA also permits a covered employee to take leave to
provide self-care, when the employee is unable to perform the
functions of the job. Like the rules regarding family care
leave, the employee must suffer a serious health condition that
requires inpatient treatment or absence of work for more than 3
days and treatment by or under the supervision or direction of a
health care provider or practitioner on two or more occasions.
An employee taking leave for self-care, who has a medical
need for intermittent leave, must also try to schedule it to
reduce disruption to the employer's operations and may be
reassigned to an equivalently paid position that better
accommodates the need for recurring leave. The employee may also
be required to provide a health care provider's certification of
the need for the self-care leave, including a statement that
based on a review of the employee's essential functions, the
employee is unable to perform the job. (23) An employee who has
taken leave for a serious health condition may also be required,
as a condition of returning to work, to provide a medical
fitness-for-duty report. (24)
Paid or Unpaid Leave Issues
The 12 weeks of leave provided under the FMLA need not be
paid leave. Where an employer provides less than 12 weeks of
paid leave per year, the leave beyond the period of paid leave
may be required to be taken without pay. (25) However, absent an
employer's policy concerning use of paid leave, an employee may
take unpaid leave or use available paid leave, or any combination
of paid and unpaid leave. On the other hand, an employer may
require the employee to exhaust available paid leave before
resorting to unpaid FMLA leave.
If the leave is necessary to care for a newborn, adopted, or
foster-care child, or because of the serious health condition of
a family member, an employee may elect, or an employer may
require the employee, to substitute any accrued paid vacation,
personal, or family leave before unpaid leave is taken under the
FMLA. (26) If the leave is occasioned by the serious health
condition of a family member or the employee's own illness or
condition, the employee may elect, or the employer may require,
substitution of accrued paid vacation, personal, family, or sick
leave before unpaid leave is taken. (27)
Law enforcement administrators should carefully consider
their prerogatives under this section of the FMLA. Unless the
employer decides as a matter of policy that accrued paid leave
must be used before unpaid FMLA leave, an employee would be
entitled to take available accrued paid leave, in addition to the
12 weeks' leave available under the FMLA. (28)
If an agency decides that it is the better practice to
substitute accrued paid leave for unpaid FMLA leave, it must
determine that the reason leave is requested qualifies under the
FMLA and notify the employee of the substitution requirement at
the time the employee requests leave. (29) To ensure this
practice functions smoothly, departments could require employees
to indicate the general reason for leave whenever it is
requested. (30)
Job and Benefit Protections
The FMLA provides two major job and benefit protections.
First, an employee who returns from FMLA leave is entitled to be
restored to the position held at the time of the leave or to an
equivalent position with equivalent employment benefits, pay, and
other terms and conditions of employment. (31)
Job restoration rights do not guarantee that the employee
will return to the old position, although normally that should
occur if the position remains available and the employee
continues to meet the job qualifications. (32) If the position is
no longer available, the employee is to be placed in a position
with the same pay, benefits, and working conditions. If the
employee held a position for which pay premiums were earned
(e.g., shift differential pay) or that regularly entailed
overtime work and pay, the employee is entitled to a like
position upon return to work. (33)
The position must also "involve the same or substantially
similar duties and responsibilities, which must entail
substantially equivalent skill, effort, responsibility, and
authority." (34) In addition, the employee is entitled to receive
any unconditional pay raises, such as cost of living adjustments,
that occurred during the period of leave.
Second, unless waived by the employee, the employer is
obligated to maintain the employee's insurance coverage under any
"group health plan" during the period of leave at the same level
of coverage and under the same conditions that existed prior to
the leave. (35) An employee on unpaid FMLA leave may be required
to pay the employee's share of the health insurance premiums,
including any increase or decrease in the premiums that occurs
during the period of leave. (36)
Agencies that require employee contributions for health
insurance coverage must devise a system for ensuring the
employee's share of the premium is paid and must provide the
employee with advance written notice of the terms and conditions
under which the payments must be made. Only health coverage is
required to be maintained; life insurance and other benefits need
not be continued, although upon return to duty, the employee is
entitled to resume receipt of those additional benefits without
having to wait for "open season" enrollment periods. (37)
An employee who was on unpaid FMLA leave and who does not
return to work for at least 30 days at the expiration of that
leave is liable for the employer's share of health insurance
premiums and any part of the employee's share that was paid by
the employer. (38) However, an employee who does not return to
work because of the "continuation, recurrence, or onset of a
serious health condition which would entitle the employee to
leave under FMLA" or for circumstances beyond the employee's
control, cannot be held liable for the insurance premiums. (39)
Where recovery of premiums is permitted, the employer is entitled
to set off the amount against any final pay or monetary benefit
to which the employee would otherwise be entitled.
CONCLUSION
Law enforcement administrators must remain alert to changes
in the law that affect the personnel practices of their agencies.
Police administrators with responsibility for personnel
management should carefully review departmental leave policies to
ensure they comply with the four primary requirements of the
FMLA.
First, leave policies must permit leave to care for a child
upon birth, adoption, or placement in foster care; to care for a
son, daughter, spouse, or parent with a serious health condition;
and to provide self-care when the employee is not able to perform
the essential functions of the job. Second, leave policies
should specify whether the employee will be permitted or required
to substitute accrued paid leave available under existing leave
policies for unpaid leave under the FMLA. Third, policies must
be implemented to ensure that employees returning to duty are
restored to their old or an equivalent position. Fourth, health
insurance coverage should be examined to ensure mechanisms exist
to continue coverage at the same levels and under the same
conditions as if the employee were not on leave. Administrators
should conduct this review of their leave practices now so as to
be prepared when employees request the leave to which they are
entitled under the FMLA.
ENDNOTES
(1) Similar legislation already exists in several States
and is not preempted unless the State law conflicts with the
Federal law. State laws that grant employees greater rights or
protections must be followed.
(2) P.L. 103-3, Section 405. For agencies operating under
a collective bargaining agreement on that date, the effective
date is delayed until expiration of the agreement or February 5,
1994, whichever is earlier.
(3) P.L. 103-3(4)(A)(iii); 29 C.F.R. 815.108. There
must, however, be at least 50 employees of the employing
municipality working within a 75-mile radius before an employee
is eligible for FMLA leave. Id. Title I of the FMLA applies to
State and local governments. Title II contains similar
provisions, which apply to the Federal Government.
(4) P.L. 103-3, Section 101(2). An employer is permitted
to designate the 12-month period in which the leave may be taken.
An employer may elect the regular calendar year, a fiscal year, a
leave year, any fixed 12-month period, a rolling 12-month period
forward from the date leave is first used, or a rolling 12-month
period measured backward from the date leave was last used. 29
C.F.R. 825.200. Choosing one of the first four options permits
the employee to "stack" leave by taking 12 weeks at the end of
the year and an additional 12 weeks at the beginning of the next
12-month period.
(5) P.L. 103-3, Section 102(a).
(6) P.L. 103-3, Section 104(c).
(7) P.L. 103-3, Section 104(a).
(8) P.L. 103-3, Section 107(1)(A). In addition, if the
employer acted in bad faith and caused the loss of wages or
salary, the FMLA contains a liquidated damages provision that
doubles the amount otherwise payable. P.L. 103-3, Section
107(a)(1)(A)(iii).
(9) 29 C.F.R. 825.201. Leave related to pregnancy or
prenatal care is included but is generally taken under the
self-care provisions of the FMLA. See, 29 C.F.R. 825.114.
(10) 29 C.F.R. 825.203.
(11) P.L. 103-3, Section 102(f); 29 C.F.R. 825.202. Where
combined leave is taken, the employee is entitled to take the
remainder of the 12 weeks for other FMLA purposes. For example,
if a husband and wife working for the same employer both took 6
weeks of leave to care for a newborn child, each would be
eligible to take 6 weeks' additional leave to care for other
family members or for self-care. Id.
(12) The parent-child relationship may be biological, by
reason of adoption or foster care, guardianship, or because of
"day-to-day responsibilities to care for and financially support
a child." 29 C.F.R. 825.113. More distantly related persons and
parents-in-law are not covered. Id. Common-law marriages, if
recognized under State law, are sufficient to establish a spousal
relationship; however, unmarried domestic partners do not qualify
for leave to care for their partner. Id.
(16) 29 C.F.R. 815.114. The regulations also include
conditions that, if left untreated, would result in the absence
from normal activities for more than 3 days.
(17) Id.
(18) 29 C.F.R. 825.114.
(19) 29 C.F.R. 825.116.
(20) P.L. 103-3, Section 102(b).
(21) 29 C.F.R. 825.118. The FMLA also imposes a duty on
employees intending to use FMLA leave to provide the employer
with at least 30 days' notice, or such notice as practicable,
when the use of the leave is foreseeable. P.L. 103-3, Section
102(e).
(22) P.L. 103-3, Section 102(b)(2).
(23) 29 C.F.R. 825.306. Where the employer questions the
adequacy of the medical certification, it may require the
employee to be examined by an independent health care provider,
at the employer's expense. If the two medical opinions conflict,
an examination by a third health care provider, mutually agreed
upon by the employer and employee, may be required. The expense
of the third examination is to be borne by the employer and the
opinion shall be binding. 29 C.F.R. 825.307.
(24) P.L. 103-3, Section 104(a)(4); 29 C.F.R. 825.310.
Such a requirement must be pursuant to a uniform policy, and the
employee must have been put on notice that the employer would
require the fitness-for-duty certification. The act imposes
other notification requirements on the employer, including a
requirement that a description of rights and obligations under
the FMLA be included in any written leave and benefit materials
normally provided employees or provided in writing at the time
the employee requests or gives notice of the need for FMLA leave.
(25) P.L. 103-3, Section 102(c).
(26) P.L. 103-3, Section 101(d)(2)(A).
(27) P.L. 103-3, Section 101(d)(2)(B). However, the FMLA
does not require an employer to provide paid sick leave when it
would not otherwise be available. If paid sick leave cannot be
used to care for other persons'illnesses under existing
employment practices, the FMLA does not require a change to that
practice. 29 C.F.R. 825.207.
(28) The accrued paid leave must be used in accordance with
the employer's policy governing its use. See, note 27, supra.
If the accrued paid leave is taken for purposes other than child,
family, or self-care, the employee is entitled to up to 12 weeks'
additional leave for those purposes under the FMLA. 29 C.F.R.
825.207.
(29) 29 C.F.R. 825.208.
(30) 29 C.F.R. 825.208 provides that "...[a]n employee
requesting unpaid FMLA leave must explain the reasons for the
needed leave so as to allow the employer to determine that the
leave qualifies under the Act...In any circumstance where the
employer does not have sufficient information about the reason
for an employee's use of paid leave, the employer should inquire
further to ascertain whether the paid leave is potentially
FMLA-qualifying."
(31) P.L. 103-3, Section 104(a).
(32) 29 C.F.R. 825.214. If the employee's job
qualifications, e.g., a licensing requirement, lapse during the
period of leave, the employee must be "given a reasonable
opportunity to fulfill those conditions upon return to work." 29
C.F.R. 825.215.
