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Getting the most from
guaranteed time off
By Jennie
L. Phipps • Bankrate.com
Taking a 12-week leave from work to care for a sick
family member or attend to your own serious health concerns is a
right guaranteed to most U.S. workers under the Family Medical Leave
Act. The federal law requires your employer to maintain any company
benefits during your absence, including insurance, and allows you
to return to the same or comparable position.
But it's not a law without flaws. The biggest drawback:
The leave is unpaid.
That explains why only 6.5 percent of eligible workers
have taken advantage of the FMLA since it took effect in 1993. A
Labor Department study in 2000 found 78 percent of people who want
to use the federally assured time off say they can't afford to.
Since that study was released, family activists in
more than 24 states have pushed for changes. In September, California
became the first state to enact a paid-leave law. Beginning in 2004,
Golden State employees will be able to tap expanded state disability
insurance up to a maximum of $380 a week for six weeks while they
care for a new baby, sick relative or tend to a personal illness.
Labor experts will be closely watching how the California
measure works, since the state often is a bellwether for nationwide
change. In the meantime, if you're faced with using the federal
FMLA here are some things to consider.
Are you eligible?
The Department of Labor says these circumstances qualify for FMLA
leave:
- The birth of a child or to care for a newborn within
12 months of the birth.
- Adoption or the placement of a foster child within
12 months of the placement.
- Care of a spouse, child or parent diagnosed with
a serious health condition.
- Inability to work because of a serious health condition.
To meet the basic requirements, you must have worked
for the company at least one year and put in a minimum of 25 hours
per week during that time.
Your company also has guidelines to meet. A firm must
employ at least 50 people who live within a 75-mile radius of the
job site. If not, it doesn't have to offer this benefit (although
the new California law applies to all employers). Your company also
can exempt you if you earn in the top 10 percent of company salaries
and are deemed indispensable.
An employer can insist on medical certification. That
means asking your doctor or the doctor caring for your ailing relative
to provide a statement affirming that you need the care yourself
or that your loved one would have severe difficulty getting along
without your help. The whole process will go more smoothly if you
ask the doctor at the outset for this statement instead of waiting
until the employer requests it.
Paul Lopez, head of the employment law department
at the Fort Lauderdale, Fla., law firm of Tripp Scott, says the
ailment must be serious and the demand for care long-term. The courts
haven't been supportive of leave requests for short-term illnesses
like the flu.
Where does other leave fit in?
The company can insist that FMLA leave and any other time off available
to you -- sick leave, vacation, short- or long-term disability leave,
sabbaticals -- run concurrently. So don't expect to take 12 weeks
federal leave and then tack on vacation to lengthen your time away.
There is one caveat: From the beginning, the company
has to serve notice in writing that any company-accrued time you
use while you are away counts as FMLA leave. Some companies do that
via an employee handbook, getting your signature indicating that
you've read all its terms.
Other firms are more casual. They don't require you
to take concurrent leave and may be willing to let you string your
available time off together. But they can't change their corporate
minds in the middle of the process and six weeks into your leave
tell you that you're simultaneously using FMLA time and your vacation.
Attorney Lopez says the courts in several instances
have declared retroactive leave determination to be unlawful. He
suggests employees let the company make the first move. If the employer
doesn't spell out the rules upfront, you're entitled to do what
you want.
How will it work?
FMLA doesn't require the leave be taken by the week or even by the
day. If you have an illness that requires treatment several times
a week, you could conceivably take your FMLA leave in hour-long
blocks. Lopez says this is the kind of leave that drives employers,
and co-workers who have to pick up the slack, crazy. But if that's
what the situation demands, employers are obligated to approve.
It's smart to work out a schedule, when possible,
that reduces the impact on your employer. Alert your physician to
the situation and ask for help in minimizing the medically necessary
leave. Your company's personnel department may be an ally here.
By giving that office permission to contact your doctor, the official
HR representative may have more success than you in getting medical
appointments at convenient times.
The law also says that unless the situation is an
emergency, you have to give your employer at least 30 days' notice
that you intend to use FMLA benefits. Human resources consultant
Arlene Vernon of HRxcellence urges employees to be as cooperative
as they can, giving as much advance notice as possible.
Since, according to the Labor Department, 80 percent
of employers don't replace the missing employee, the burden often
falls on co-workers. To minimize resentment created by understaffing,
do what you can to make your absence as painless as possible.
Katharine Parker specializes in labor and employment
law at the New York firm of Proskauer Rose. She has taken FMLA to
give birth to two children and was named a partner while on the
second leave. She says cooperation is key when taking extended leave
and suggests:
- Leave your job and desk in good shape. Talk to
the people who will be taking over your responsibilities, answer
questions and offer instruction.
- Make yourself available during your absence so
people at work can call if they have questions or problems.
- Develop a support network so when you come back,
you're able to give your job your full attention.
Not only will these moves mitigate the impact of your
leave on the office, Parker notes that they can ensure FMLA time
isn't detrimental to your career.
Track time and money
Keep track of how much leave you use. This is particularly important
if your time off is not 12 consecutive weeks.
If your employer asks you to work from home or occasionally
come in for a meeting while you're on leave, Parker says expect
to be paid and subtract the time from the leave you've used. Being
cooperative is one thing; losing time to which you're entitled is
quite another.
While employers are required to maintain health insurance
and other benefits during your absence, you'll still be expected
to ante up your share if there's an employee contribution. This
can add up to a substantial amount of money, and employers are free
to collect it all in advance of your leave.
Many companies also will require you to agree in advance
that if you don't return after your leave is over, you will repay
any contribution the employer made to your benefits while you were
away. If the situation is a nonemergency, such as pregnancy, saving
in advance can offset these financial burdens.
And once you're ready to return to the office, make
sure it's the same work. FMLA guarantees you can either have your
old job back or a similar position. If your employer changes your
shift or in some other way materially alters what you do, he may
be in the wrong.
Sometimes a boss and an employee disagree on just
what constitutes a similar position. If this happens to you, Lopez
suggests you first try to work it out with HR. If that doesn't iron
out the issue, then contact a labor lawyer.
Jennie L. Phipps is a contributing
editor based in Michigan.
-- Posted: Oct. 8, 2002
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