The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is the easiest of the federal laws to violate without knowing it. It is amazing so many employees think they are entitled to leave--and so many employers give it--without understanding the act. The act may not apply to your self-storage business at all, as it applies to larger operators. But it is important for smaller operators to know why the FMLA does not apply to them and what expansion of operations may trigger compliance.

According to the FMLA, you must have 50 employees within a 75-mile radius of each other for the act to apply, although a few states have lowered that number. IBM may have an office with 40 employees in the middle of Iowa, but if there are no other IBM offices within 75 miles of the Iowa location, it would not be required to abide by the FMLA, regardless how many people may be employed at the main headquarters. Where you, as a business operator, may need to be concerned is if you own multiple businesses in a city--for example, a construction company and a self-storage facility. If you have 50 or more employees between the two businesses, you may have to observe the FMLA at both.

Even if you are an employer with more than 50 employees, it does not mean every employee is entitled to the benefits of the act. To be entitled, an employee must have had one year of service prior to requesting the leave and have worked at least 1,250 hours during that year. There is also an exception that excludes highly compensated key executives from the entitlement of the act, although this is not clearly defined.

Assuming you are an employer with more than 50 full- and part-time employees in a 75-mile radius, and assuming they meet the FMLA entitlement requirements, what triggers benefits? The scope of availability is limited to: 1) the birth or adoption of a child; 2) if the employee himself has a serious health condition; or 3) if the employee is needed to care for an immediate family member (defined only as spouse, parent or child) with a serious health condition. (We will get back to what qualifies as a "serious health condition.")

If your entitled employee makes a leave request, the following is true: 1) the employee is entitled to up to 12 weeks of leave in a 12-month period; 2) the leave is unpaid, unless you agree otherwise; and 3) you can require the employee to use all unused paid leave as part of the 12 weeks. That is, you can make the employee use all of his unused paid or unpaid sick leave, vacation days, personal days, etc.

While the leave is unpaid, you do have to maintain benefits for this employee. If you pay 100 percent of the health insurance for the employee, you must maintain this benefit during the leave. If you require some sort of split, you can only require the employee to continue to pay the split amount; and, of course, if the employee does not pay the amount, you can terminate your end of the health insurance or benefit coverage. At the end of the leave, you must give the employee his old job or a substantially similar job with the same pay.

A "serious health condition" that allows an employee to take leave as defined by case law is a physical or mental condition that meets one of the following three criteria (remember, it must apply to the employee or an immediately family member):

[1] The condition requires inpatient hospital treatment, even if only for one day.

[2] The condition incapacitates the employee for at least four days and requires continuing medical treatment. Continuing medical treatment is defined as at least two contacts with a medical professional, not within any specific period of time. That is, if the employee goes to the doctor one time and begins a course of physical therapy, and he is incapacitated for four days, he is entitled to leave. It has also been held that a doctor visit and the consequential fulfillment of a prescription constitutes continuing medical treatment.

[3] The condition requires periodic medical treatment. Asthma, migraine headaches and arthritis have, in some circumstances, been found to be serious health conditions.

Intermittent or reduced-schedule leave are also permitted under the FMLA. For example, if an employee must leave periodically for short periods to receive treatment such as dialysis, or to go home and care for a loved one every Thursday afternoon, you have to allow him to take the leave.

There is a notice requirement for employers and employees. The employee is supposed to give 30 days notice of an intent to take a leave, but only if it is practical to do so. If it is not practical, he must give only as much notice as can reasonably be expected. The employee is not required to ask for FMLA leave specifically--it is the employer's responsibility to determine if the time off qualifies as FMLA leave. The employer then has to notify the employee the time off counts against FMLA leave time. For example, if the employee calls in sick and is out for four days, he could have been suffering from an incapacitating condition. If he went to the doctor twice, it could be considered FMLA leave, at which time you are required to notify him of this fact.

Your notice has to be in writing and must alert the employee, within a reasonable period of time, that his leave is charged against FMLA time. Initially, the Department of Labor had very strange rulings that said if you did not give the employee notice within a reasonable time, you had to waive the right to claim FMLA leave. For example, in older cases where an employee called in with a migraine headache, if the employer did not give him written notice at that time, the employee was not charged FMLA leave. Courts have subsequently tried to straighten out these over-interpreted rulings and give employers a reasonable period of time to serve notice.

There is a two-year statute of limitations on most FMLA actions. An employee denied FMLA leave can have a jury trial. If he wins, he gets his benefits, back wages, and his job back--plus attorney's fees and liquidated damages in an amount equivalent to the award of lost wages and benefits.

Again, this area of the law is full of potential pitfalls, and mistakes are easy to make without intention. If you believe you may be subject to the terms of the Act, confirm you have the employees in number and location to qualify, and know which of your employees are eligible. Then consider a review of your employment practices with a qualified attorney. If you are not subject to the Act, first be grateful, but also make certain you are not giving leave to employees who are not entitled.

Jeffrey Greenberger practices with the law firm of Katz Greenberger & Norton LLP in Cincinnati, which primarily represents owners and operators of commercial real estate, including self-storage. Mr. Greenberger is licensed to practice in the states of Ohio and Kentucky, and is the legal counsel for the Ohio Self Storage Owners Society and the Kentucky Self Storage Association. He is a regular contributor to Inside Self-Storage magazine and the tradeshows it sponsors. For more information, call 513.721.5151.

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