K. Pregnancy Leave and Reemployment

Even before the enactment of the Family and Medical Leave Act (FMLA) in 1993, the rights of pregnant workers to have their jobs back within a certain period of time after giving birth and the ability to enforce the right to take paid maternity leave were being recognized in a number of states. Passage of the FMLA now guarantees that pregnant workers who work for companies with 50 or more employees will get their jobs back after giving birth. The act affects private and nonprofit employers as well as federal, state, and local government employees, public agencies, and private elementary and secondary schools. It applies to companies that employ 50 or more employees within a 75-mile radius for each working day for each of 20 or more calendar workweeks in the current or preceding calendar year. This is about half of the nation's workforce. Part-time employees and employees on leaves of absence are counted in this calculation provided they are on the employer's payroll for each day of the workweek. Conversely, employees who began employment after the beginning of a workweek, were terminated prior to the end of a workweek, or who worked part-time on weekends are not included in the equation.

Since companies with fewer than 50 employees are exempt, analyzing the number of employees who must be counted becomes an important consideration for organizations close to the "magic" 50 number. If a company hires temporary, contract employees or part-time workers who work 25 or fewer hours a week to get under the number, they will not be subject to the law's provisions.

An eligible employee, defined as someone who has been employed for at least 12 months and worked for the employer at least 1,250 hours during the 12-month period immediately preceding the commencement of the leave, is allowed to take up to 12 weeks of unpaid leave in any 12-month period for:

• The adoption of a child (commencing from the date of the adoption);
• To care for a child, dependent son or daughter over the age of 13, spouse, or parent with a serious health condition; or
• To convalesce from a serious condition that makes it impossible for the employee to work.

(Note: The 12 months of employment need not have been consecutive.)

Under the law, a "serious health condition" is defined as an illness, injury, impairment, or physical or mental condition requiring either inpatient care at a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider. Thus, an overnight stay in a hospital, any condition requiring absence from work of more than three consecutive calendar days, or a health condition that demands continued treatment by a health care provider may qualify. This includes.findlaw voluntary or cosmetic treatments if inpatient hospital care is required, restorative dental surgery after an accident, and continued treatment for serious allergies or stress or for substance abuse.

Thus, some employees who require continuing medical supervision (i.e., workers with early-stage cancer or who have major heart surgery) and must undergo frequent medical examinations or treatment but are nonetheless capable of working part-time still fit into the category of suffering from a "serious health condition" and qualify for leave time.

For those workers claiming serious health situations, the law permits an employer to obtain medical opinions and certifications regarding the need for a leave. The certification must state the date on which the serious health condition began, its probable duration, the appropriate medical facts within the knowledge of the health care provider regarding the condition, and an estimate of the amount of time the employee needs to care for a family member or herself. If an employer has doubts about the certification, it may require a second opinion from a different health care provider chosen by the employer. If the two opinions differ, a third opinion from a provider jointly designated or approved by the employer and the employee will be final and binding.

The law applies equally to both female and male employees. Thus, a father, as well as a mother, can take family leave, at the same time or sequentially, depending on the family's preferences and economic considerations. (Note: If both spouses work for the same company, the law limits the total amount of leave to 12 weeks for both in some situations, but not to care for themselves, their spouse, or a child.)

Although written notice is not generally required, women who qualify for unpaid leave are required to give 30 days advance notice unless this is not practicable or foreseeable, such as in a premature birth or sudden, unexpected illness. If 30 days notice cannot be given, notice must be given as soon as practicable. This is because you are required to make a reasonable effort to schedule the leave so as not to unduly disrupt the employer's operations.

Tip:It is not necessary to state that you require FMLA leave. Rather, it is sufficient only to indicate that time is needed and provide some details why. After your notice is received, the employer has an immediate obligation to provide you with a written statement concerning your rights, duties, and obligations within two business days. The written notice must provide you with answers to the following:

• Your right to paid leave and if this will be substituted by the employer for FMLA purposes
• Any requirements for you to make premium payments to maintain health benefits
• Your liability for medical premiums paid by the employer during your absence if you do not return to work after the leave
• Your right to receive the same or an equivalent job upon your return
• Any requirement that you must present a certification stating your fitness before returning
• Whether you are considered a key employee under the FMLA and therefore not entitled to coverage

If such a timely notice is not received, the law presumes that you are qualified to take FMLA leave as soon as practicable. Also, if you receive answers that you do not agree with, consult an employment lawyer immediately.

The key element of the law allows a person taking leave to be given her old job back or assigned an equivalent position, with equivalent benefits, pay, and other terms and conditions of employment, when she returns. The burden is on the employer to give the worker back her same or an equivalent job (not a comparable job) wherever possible.

An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits, and working conditions, including privileges, prerequisites, and status. It must involve the same or substantially similar duties, equivalent skill, effort, responsibility, and authority. The job must be in the same geographic proximity and offer the same opportunities for bonuses, profit sharing, salary increases, promotions, additional health insurance, sick leave, and educational benefits.

Also, no employer may deprive an employee of benefits accrued before the date on which the leave commenced. During the time the worker is on leave, an employer is not required to pay her but is required to maintain health insurance benefits, as well as life and disability insurance, pensions, educational benefits, and any annual sick leave that has accrued prior to the commencement of the family leave, at the level and under the conditions coverage would have been maintained if the employee had continued in employment. However, if the employer was legitimately about to lay off the worker just before being notified of the leave, the employee's right of reinstatement is no greater than what it was when the discharge occurred.

Counsel Comments:Nothing requires an employer to provide health benefits if it does not do so at the time the employee commences leave. However, if the employer was considering establishing a health plan during the employee's leave, the worker on leave is entitled to receive the same benefits other workers still on the job receive. Also, an employer has the right to demand repayment for the group health care premiums paid by the employer during the leave if the employee fails to return after the period of leave to which she is entitled has expired and the reason was not caused by a recurrence or onset of a serious health condition or other circumstances beyond her control.

Tip:An employee may refuse to make the contributions during the leave period but still must be offered health insurance on the same terms and conditions when returning to work. If that occurs, the employer cannot require you to undergo a new health insurance qualifying period or a physical, or impose other restrictions that did not exist prior to your leave. Finally, if the health insurance plan benefits improved during your absence, you are entitled to those improved benefits upon your return.

There are numerous exceptions to be aware of. First, the FMLA prohibits a worker on leave from collecting unemployment or other government compensation. Part-time workers and those who have not worked for at least a year do not qualify for FMLA leave. Also, an eligible employee may elect, or an employer is permitted, to substitute any accrued paid vacation leave, personal leave, or family leave of the employee under preestablished policies in handbooks or employee manuals for any part of the 12-week period of family leave. As a result, companies are required to provide both paid and unpaid leave only up to a total of 12 weeks, and employers may count time off against paid vacation days or other accrued personal leave.

The leave request may not generally be intermittent or on a reduced schedule without the employer's permission or except when medically necessary; employers are permitted to require an employee taking intermittent leave as a result of planned medical treatments to prove the medical necessity of the leave and to transfer temporarily to an equivalent alternative position. Thus, for example, employers may have the right to demand that pregnant workers take the time off in a continuous period and then return. This provision gives employers greater staffing flexibility by enabling them to transfer employees who need intermittent leave or leave on a reduced schedule to positions that are more suitable for recurring periods of leave.

If you are a top executive (defined as being in the highest 10 percent of the company's payroll), the company may refuse your request to take leave when it would cause substantial economic harm. If you nonetheless take the leave, you are still eligible for continuation of medical benefits but the company is not obligated to take you back or guarantee that an appropriate job will be available upon your return. However, in such situations, no recovery of premiums may be made by the employer if the employee has chosen to take or continue leave after being denied her request for leave because she is ill or needs to continue the care of a relative or child. (Note: If the employee refuses to come back because she took a better-paying job, the company can lawfully demand repayment.)

Also, while you are on leave, economic benefits such as employer-contributed pension and profit-sharing payments and vacation pay do not continue to accrue unless you are receiving full pay with benefits. When in doubt, ask your employer about your entitlement to such continued benefits before you go out on FMLA leave.

Although many situations may qualify as important or as emergencies (such as having to accompany your child to an out-of-state college or take care of a sick grandparent for several weeks), these may not be covered under the law. While you are out you must report regularly to your employer and advise when you think you will be returning.

Tip:Speak to a knowledgeable lawyer if you return from pregnancy leave and/or unpaid child care leave to a different position. This is because receiving a job of equal pay and grade may still violate the law if it is a different job.

The Secretary of Labor has the authority to investigate alleged violations of the FMLA. This includes.findlaw requesting employers to submit their books and records for inspection. Violations are punishable by injunctive and monetary relief. For employers who violate the law, monetary damages include an amount equal to the wages, salary, employment benefits, or other compensation denied or lost to an employee. In cases where no compensation or wages are lost, the law imposes other forms of damages, such as the actual amount of out-of-pocket money paid to someone else to provide care. In the event a willful violation is proved, employers are liable for additional damages equal to the amount of the award. The law also imposes reasonable compensation for attorney fees, expert witness fees, and other costs and disbursements. Employers are forbidden from discriminating against workers who attempt to utilize the act or who protest alleged violations. Similarly, it is unlawful to retaliate against any worker by discharge or reduced benefits because the employee has filed a charge or instituted a proceeding concerning the law or is about to give (or has given) testimony regarding the FMLA.

Counsel Comments:In the event your state law is more comprehensive or offers greater benefits than federal law, state law will control. State or local laws that provide greater protection, longer leave periods, or paid leave are enforceable, so check the law in your state where applicable. You may discover, for example, that state law applies to smaller-size employers (i.e., those with 20 or more full-time employees).

Tip:The FMLA cannot rescind rights granted to employees in collective bargaining agreements, pension plans, ERISA rights, or rights granted as a result of the ADA and other discrimination laws. If you believe you have been discriminated or retaliated against by asserting your rights, speak to a lawyer. You have the option of commencing a private lawsuit and seeking money to pay for a caregiver's bills (up to 12 weeks) if you were denied leave provided you bring the action within two years of the date of the violation or three years if the violation is willful. You can also sue for job reinstatement and resulting damages if you are illegally denied a leave, take it anyway, and are not given your old job back when you want to return. An employer may appeal negative results of an investigation by the Department of Labor. Have your lawyer explain all your options and rights to you and then map out an effective action plan.