US Pharm.
2006;11:50-61.
Many
pharmacy employees find it necessary to be absent from work for a variety of
valid family and personal health reasons. Unfortunately, pharmacy employers'
and employees' views of what is a valid and necessary absence from work do not
always coincide. Because there are relatively few laws protecting employees
from wrongful termination, these absences can give employers the opportunity
to fire employees without fear of repercussion.
To provide employees with
protection from termination based upon certain valid family and medical
reasons, the U.S. government passed the Family and Medical Leave Act (FMLA) on
August 5, 1993.1 Implemented by the U.S. Department of Labor (DOL)
in early 1995, the FMLA provides a means for employees to balance their work
and family responsibilities by taking a leave of absence for certain reasons.
The act benefits families by providing them with stability and economic
security. It is also intended to promote the nation's interest in preserving
the integrity of families.2
Basic Leave Provisions
Under the FMLA
The FMLA requires
covered employers to grant eligible employees up to 12 workweeks of unpaid
leave during any 12-month period for the birth and care of an infant,
placement of a child with the employee for adoption or foster care, care of an
immediate family member (spouse, child, or parent) with a serious health
condition, or inability to work because of a serious health condition.3
FMLA regulations, issued by DOL, define a "serious health condition" as an
illness, injury, impairment, or physical or mental condition that involves (1)
inpatient care (i.e., an overnight stay) in a hospital, hospice, or
residential medical care facility, including any period of incapacity (i.e.,
inability to work, attend school, or perform other regular daily activities
due to the condition or treatment for or recovery from the condition) or
subsequent treatment in connection with such inpatient care or (2) continuing
treatment by a health care provider.4
Under FMLA regulations, the
employer is permitted to select the 12-month period in which the 12 weeks of
leave entitlement occur--i.e., calendar year, fiscal year, the employee's
employment anniversary date, the 12-month period measured forward from the
date that any employee's first FMLA leave begins, or a "rolling" 12-month
period measured backward from the date on which an employee uses any FMLA
leave. If the employer fails to select one of these options, then the option
that provides the most beneficial outcome for the employee will be used.5
Interestingly, both men and
women are equally entitled to FMLA leave for the birth of a child or placement
of a child with the employee for adoption or foster care. If both parents work
for the same organization, as may be found in certain pharmacy organizations,
a special provision in the FMLA regulations addresses this issue, specifying
that the couple is limited to a combined total of 12 workweeks
of FMLA leave.6
As demonstrated, there are
many situations that will allow pharmacy employees to take extended absences
from work under the FMLA.
Employees Covered by the
FMLA
An "eligible
employee" is an employee of a covered employer who has been employed by the
employer for at least 12 months, has been employed for at least 1,250 hours of
service during the 12-month period immediately preceding the commencement of
the leave, and is employed at a work site where 50 or more employees
are employed by the employer within 75 miles of that work site.7
The 12-month employment requirement need not be met in consecutive months.
Whether an employee has worked
for the employer for at least 1,250 hours in the past 12 months and has been
employed by the employer for a total of at least 12 months must be determined
as of the date leave commences--i.e., if an employee notifies the employer of
need for FMLA leave before the employee meets eligibility criteria, the
employer must either confirm the employee's eligibility based upon a
projection that the employee will be eligible on the date leave would
commence, or must advise the employee regarding when the eligibility
requirement will be met.
Employers Covered by the
FMLA
The FMLA affects
employers with 50 or more employees for each working day during each of 20 or
more weeks in the current or preceding year.8 However, all U.S.
government employees (e.g., those employed by the Veteran's Administration or
the Public Health Service), with a few unique exceptions, are covered by this
act.
Based on the preceding
statement, it is possible that many pharmacy chains and hospitals are covered
by the FMLA. Independent pharmacies may (or may not) qualify, depending on the
number of employees. How is the number of employees determined? Any employee
whose name appears on the employer's payroll will be considered employed each
working day of the calendar week and must be counted regardless of whether
compensation is received for the week. Employees on paid or unpaid leave,
including FMLA leave, leave of absence, and disciplinary suspension, are
counted as current employees, provided that the employer has a reasonable
expectation that the employee will return to active employment.9
Additional guides are in place for those private employers who are at the
50-employee count and then drop slightly below it.10
Employee Benefits Under the
FMLA
One benefit of the
FMLA is that under certain circumstances, leave may be taken "intermittently
or on a reduced leave schedule."11 Intermittent leave is FMLA
leave taken in separate blocks of time (e.g., anywhere from one hour to
several weeks) due to a single qualifying reason, whereas a reduced leave
schedule is a change in an employee's schedule for a period of time, normally
from full to part time.
When leave is taken after the
birth of a child or placement of a child for adoption or foster care, an
employee may take leave intermittently or on a reduced leave schedule with
employer consent only. The employer's consent is not required, however, for
leave during which the mother has a serious health condition in connection
with the birth of her child or the newborn child has a serious health
condition.
Likewise, leave may be taken
intermittently or on a reduced leave schedule when medically necessary for
planned or unanticipated medical treatment of a serious health condition or
for recovery from treatment or from a serious health condition. For example,
leave can be taken intermittently to attend medical appointments or receive
treatment such as chemotherapy. A pregnant employee may take leave
intermittently for prenatal examinations or for periods of severe morning
sickness. Intermittent leave or a reduced leave schedule may also be taken to
provide care or psychological comfort to an immediate family member with a
serious health condition. Additionally, an intermittent or a reduced leave
schedule can be taken if an employee or an employee's family member is
incapacitated or if the employee is unable to perform the essential functions
of the position because of a chronic serious health condition, regardless of
whether he or she is receiving treatment.
While there is no limit on the
length of an increment of leave, an employer may limit leave increments to the
shortest period of time that the employer's payroll system uses to account for
absences or use of leave, provided it is one hour or less. For example, an
employee might take two hours off to attend a medical appointment or might
work a reduced workday over a period of several weeks while recuperating from
an illness. An employee generally may not be required to take more FMLA leave
than necessary to address the circumstance that precipitated the need for the
leave. For example, if a condition takes only six weeks from which to
recuperate, the employer cannot require the employee to take the full 12 weeks.
Another benefit of the FMLA is
the requirement that employers provide each returning employee with the same
job position that the employee held when leave commenced or with an equivalent
position, with equivalent benefits, pay, and other terms and conditions of
employment.12 However, the FMLA does not require that employees who
are among the 10% highest-paid employees of the company (also known as key
employees) be restored their jobs if it would cause substantial and
grievous economic injury to the employer.13,14 The substantial and
grievous economic injury requirement would probably prove difficult to justify
with regard to chain pharmacies or hospitals. Nevertheless, it would be
advisable for pharmacy employees to have an understanding of the employer's
intent regarding this section of the FMLA.
Additionally, employees who
take FMLA leave do not lose any benefits (e.g., vacation or sick time)
that accrued before the leave commences. However, the law does not require
that employees accrue the same employment benefits during the period of the
leave, although many employers allow such an accrual. In addition, employers
are required to maintain health insurance coverage under a group health plan
for employees who take an FMLA leave, and both the employee and the employer
are required to continue to pay their usual respective portions of the premium.
15 If, however, the employee does not return from a leave for reasons
other than a continuation, recurrence, or onset of a serious health condition
or other circumstances beyond the employee's control, the employer may require
the employee to repay the employer's share of premiums paid during the leave
of absence.16
While it seems that benefits
are stacked in favor of the employee, certain options are available to the
employer in restricting benefits. Employers do not have to provide paid time
off for the leave unless they normally would provide such paid leave. It
should be noted that an employee's accrued paid leave (e.g., sick or vacation
time) may be substituted for certain FMLA purposes at either the employee's or
employer's request.17 Furthermore, an employer is not
required to offer the full 12 weeks of unpaid leave after paid leave is used.
This prevents an employee from taking, for example, four weeks of accrued sick
time, six weeks of vacation time, and an additional 12 weeks of unpaid leave.
Employers also have the right to request that employees provide a health care
provider's certification of the employee's medical condition. The FMLA allows
the employer, when there is reason to doubt the validity of the original
certification, to obtain both a second and a third opinion at the expense of
the employer.18
Notice Requirements for
Employers and Employees
Employee to Employer:
An employee must provide an employer with at least 30 days' advance
notice before FMLA leave is to begin if the need for the leave is foreseeable
(e.g., the birth of a child, placement of a child for adoption or foster care,
or planned medical treatment for a serious health condition of the employee or
of a family member).19 If 30 days' notice is not feasible (e.g.,
because of a lack of knowledge of approximately when leave will be required to
begin, a change in circumstances, or a medical emergency), notice must be
given as soon as possible. An employee shall provide the employer with at
least verbal notice of the employee's need for FMLA leave as well as the
anticipated timing and duration of the leave. Employees are usually expected
to consult with their employers to work out a treatment schedule that best
suits the needs of both the employer and the employee.
Employer to Employee:
According to FMLA regulations, employers are responsible for posting a notice
to all employees of their rights under the act.20 Preapproved
notices explaining pertinent provisions of the law and providing information
about filing a charge in violation of the law are available through DOL.
Furthermore, if an employer has an employee handbook or other written guidance
that includes information on employee benefits or leave, information on the
FMLA must be included.21
Employer Recordkeeping
Requirements
In general, employers must keep a
number of records relating to the FMLA. Some of the required records include
dates of FMLA leaves taken by FMLA-eligible employees; hours of leave, if an
incremental leave or a reduced leave schedule is used; copies of all notices
given to employees by the employer; information regarding employer policies
and employee benefits under the FMLA; and/or records of any dispute between
the employer and employee regarding the designation of the leave as an FMLA
leave.22
Enforcement of the FMLA
Employees and other
persons may file complaints of FMLA violations in person or via mail or
telephone with the Wage and Hour Division of DOL's Employment Standards
Administration.23 Suit may be filed to ensure compliance with the
FMLA and to recover damages if a complaint cannot be resolved
administratively. Employees also have private rights of action, without DOL
involvement, to correct violations and recover damages through the courts.
24 A list of Web sites that provide information about the FMLA is found
in Table 1.
Case Law
In Brenneman v. Medcentral Health System, Brenneman, an employee for 27 years at the hospital pharmacy, was terminated for excessive absenteeism.25 During the course of his employment, he had 193 unapproved absences and 34 late arrivals. While it was well known that Brenneman had diabetes, he never indicated to management that his absences were related to his diabetes. Only after termination did Brenneman claim that his absences were related to a serious health condition, diabetes, and thus should not have been considered inappropriate, as they were protected under the FMLA. The court, ruling in favor of the medical center, stated that in order to invoke the FMLA, the eligible employee, during his employment, must request leave and give the employer notice that he is requesting such leave for a serious health condition. According to the court, a valid claim by an aggrieved employee can be successful only if the employee requests medical leave and receives medical attention for the serious health condition prior to termination of employment. The court followed the rules of the FMLA, which requires the employee to give the employer sufficient notice of an FMLA-qualifying reason for absences.26
Conclusion
The FMLA is an important piece of
legislation that affects the pharmacy workplace. It provides to covered
pharmacy employees the opportunity to take job-protected, unpaid leave--or to
substitute appropriate paid leave, if the employee has earned or accrued
it--for up to a total of 12 workweeks in any 12-month period. It provides leave
for childbirth, adoption of a child, and care of an ill child or spouse,
ailing parents, or an employee's own serious health condition. It also allows
employers to request certification that the medical condition is indeed valid.
Overall, the FMLA provides consistent guidelines for prolonged absences from
work that allow American families to balance the demands of the workplace with
family responsibilities.
REFERENCES
1. 29 U.S.C. § 2601.
2. 29 C.F.R. § 825.101(a).
3. 29 C.F.R. § 825.112(a).
4. 29 C.F.R. § 825.114(a).
5. 29 C.F.R. § 825.200(b), (e).
6. 29 C.F.R. § 825.202(a).
7. 29 C.F.R. § 825.110.
8. 29 C.F.R. § 825.104(a).
9. 29 C.F.R. § 825.105(c).
10. 29 C.F.R. § 825.105(f).
11. 29 C.F.R. § 825.203.
12. 29 C.F.R. § 825.214(a).
13. 29 C.F.R. § 825.217(a).
14. 29 C.F.R. § 825.218(a).
15. 29 C.F.R. § 825.209(a).
16. 29 C.F.R. § 825.213(a).
17. 29 C.F.R. § 825.207(a).
18. 29 C.F.R. § 825.307(a)(2), (c).
19. 29 C.F.R. § 825.302(a).
20. 29 C.F.R. § 825.300(a).
21. 29 C.F.R. § 825.301(a)(1).
22. 29 C.F.R. § 825.500.
23. 29 C.F.R. § 825.401(a).
24. 29 C.F.R. § 825.400(a)(2).
25. Brenneman v. Medcentral Health System, 366 F3d 412 (6th Cir 2004).
26. 29 C.F.R. § 825.302(c).
To comment on this article, contact
editor@uspharmacist.com.
