By the time an employee actually starts using FMLA leave, your company has already done quite a bit of work. You’ve dealt with coverage and eligibility requirements, handled paperwork and notices, and perhaps even done some math to figure out how many hours the employee has worked, how much leave the employee can take, and so on. But that doesn’t mean your work is done.
There may be some scheduling issues for you to handle. You’ll have to continue the employee’s health benefits. And, you may need to communicate with an employee who is out on leave.
When an employee requests time off, you should calendar the employee’s leave, including the date when the employee plans to start leave, how long the employee expects to be gone, and when the employee intends to return. If the dates are uncertain -- for example, the employee doesn’t know exactly when she’ll have to stop working before having a baby or how along it will take a parent to recover from surgery – make your best guess based on what the employee tells you and the information in the medical certification, if applicable.
This is also the time to decide whether you will postpone the start of the employee’s leave. You are legally entitled to do so if the employee’s need for leave was foreseeable and the employee could have – but failed to – provide you with at least 30 days’ notice, without a good reason. Of course, you shouldn’t delay an employee’s leave just because you can. You’ll have to carefully weigh your company’s needs against the employee’s situation to decide what to do.
Employees are obligated to make reasonable efforts to schedule foreseeable leave for planned medical treatment so as not to unduly disrupt the company’s operations. This allows you to ask the employee to reschedule planned treatment or work around the company’s needs. However, any changes must be approved by the employee’s health care provider. If the provider insists that medical treatment must begin immediately, for example, you may not stand in the way.
While an employee is on FMLA leave, you must continue the employee’s coverage under your company’s group health plan, just as if the employee had been working continuously. If the employee usually has to contribute toward the premium, you may continue to require that contribution, but your company must pay its share of the premium as well. If the employee typically pays for benefits through paycheck withholding, you may need to arrange a different payment method.
For other types of benefits, your company must follow its usual policies for employees on the same type of leave (that is, paid or unpaid). If your policies do not provide for other benefits to continue or accrue during leave, you do not have to continue them or allow them to accrue during FMLA leave.
However, employers are legally obligated to restore an employee returning from FMLA leave to the same benefits the employee had before going on leave, and you cannot require the employee to requalify for those benefits. As a practical matter, therefore, you may be required to continue other types of benefits (such as life or disability insurance) while an employee is on leave, to make sure you can reinstate them when the employee returns. In this situation, you can seek reimbursement for the employee’s share of the premiums for those benefits when the employee comes back to work.
The FMLA gives employers the right to require employees on leave to provide periodic reports on their status and intent to return to work. Your request must be reasonable, considering the facts and circumstances of the employee’s leave.
If the employee tells the employer, unequivocally, that the employee will not return to work, the employer can replace the employee permanently or make other necessary staffing changes. If the employee voluntarily chooses not to return (for example, to stay home with a healthy baby), then the employer may also discontinue the employee’s health benefits and seek reimbursement for any premiums already paid.
The FMLA prevents employers from retaliating against employees for exercising their rights under the FMLA. This means, among other things, that you may not fire or discipline an employee for taking FMLA leave, nor may you count an employee’s FMLA leave against the employee for attendance purposes.
Legally speaking, you may fire or discipline an employee who is out on FMLA leave, as long as your reasons for firing are entirely unrelated to the employee’s use of the FMLA. In one case, for example, an employer discovered that an employee had very serious performance problems only after the employee was out on leave and another employee stepped in to do her job.
However, firing or disciplining an employee on FMLA leave is a very risky move. Even if your reason for acting had nothing to do with the employee’s leave, it might look otherwise to the employee or a judge or jury. If you are considering this course of action, you should speak to a lawyer before making any decisions.