HRMN 408 WEEK 5: FMLA, Employment-At-Will, and Termination

• Vacation and Sick Leave

• Paid Time Off

• Mandatory Paid Leave

• Family and Medical Leave

• Americans with Disabilities Act Leave

• Military Leave

• Other Leave

CHAPTER 8

Leave Policies

C o p y r i g h t 2 0 1 7 . S o c i e t y F o r H u m a n R e s o u r c e M a n a g e m e n t .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 11/17/2022 4:48 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS AN: 1697333 ; Charles Fleischer.; The SHRM Essential Guide to Employment Law : A Handbook for HR Professionals, Managers, Businesses, and Organizations Account: s4264928.main.eds

Book: The SHRM Essential Guide to Employment Law : A Handbook for HR Professionals, Managers, Businesses, and Organizations

Link: https://eds-p-ebscohost-com.ezproxy.umgc.edu/eds/ebookviewer/ebook?sid=7af8ddab-ef70-4db4-806a- f38ba9ec8d6a%40redis&ppid=pp_143&vid=0&format=EB

Author: Charles Fleischer Date: 2017

The SHRM Essential Guide to Employment Law144

With a few exceptions discussed later in this chapter, there is no obligation for an employer to offer any leave at all. Of course, most employers do so because it is customary, it is humane, and not doing so could place the employer at a competitive disadvantage.

VACATION AND SICK LEAVE A typical vacation formula for regular, full-time employees might give 10 days (two weeks) per year for the first two or three years of employment and 15 days (three weeks) per year after the third or fourth year. Limitations are commonly placed on the amount of vacation that can be carried forward—a use-it-or-lose-it policy. This encourages employees to take regular vacations, which in turn improves morale. It also avoids the disruption of extra-long absences.

Sick leave may be 5 or 10 days per year. Employers need to specify in their employee handbooks what is covered by sick leave and what is not. For example, must the actual employee be sick, or does a sick child or spouse also qualify? How about routine, nonemergen- cy medical and dental visits for the employee or for the employee’s child? And believe it or not, the policy should address sick pets as well.

QUICK TIP For employers covered by Title VII of the federal Civil Rights Act or equivalent state law,

a temporary disability caused by pregnancy or childbirth must be treated the same under

the employer’s sick leave policy as a temporary disability caused by other medical con-

ditions. (See Chapter 15 for more details.)

When time off for an injury or illness extends more than a few days, employers may want to require written verification from the employee’s health care practitioner. After a serious illness or injury, the employer may require a certification of fitness for duty on the employee’s return. These policies, too, should be spelled out in the employee handbook and applied uniformly to avoid claims of favor- itism or discrimination.

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Leave Policies 145

ALERT! A diagnosis of the condition that gave rise to the absence might reveal an underlying

disability or genetic disorder. Therefore, an employer requirement that certification of fit-

ness for duty include a diagnosis may violate the Americans with Disabilities Act (ADA),

discussed in Chapter 17, or the Genetic Information Nondiscrimination Act, covered in

Chapter 14.

QUICK TIP To eliminate any implication that employees are hired for a year period, it is good practice

to express vacation and sick leave as the number of hours accrued per pay period or

per hours worked, rather than the number of days accrued per year. For example, for an

employer that pays semimonthly (24 times a year), 10 days of vacation per year trans-

lates to 3.33 hours per pay period. For the same reason, the terms vacation or paid leave

are preferred over annual leave.

ALERT! Vacation and sick leave benefits that an employer provides out of its general assets are

exempt from Employee Retirement Income Security Act (ERISA) requirements. How-

ever, if the employer establishes a dedicated fund to cover those benefits, ERISA may

apply. (ERISA is discussed in Chapter 9.)

PAID TIME OFF Some employers have abandoned the various forms of voluntary leave—such as vacation, sick leave, emergency leave, bereavement leave, hazard leave, and personal leave—and replaced them with a paid-time-off (PTO) plan.

Suppose, for example, that a company’s policy grants 10 days of paid vacation per year, 5 days of paid sick leave per year, 3 days of leave without pay for a death in the immediate family, 3 days of per- sonal leave without pay, and up to 3 days of hazard leave with pay for weather-related absences. Keeping track of all these categories is an administrative nightmare for the company. Worse, determining in which category a particular day off falls imposes a substantial burden on supervisors and may engender hard feelings among employees.

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And having to justify sick leave by providing personal medical infor- mation may feel like an invasion of the employee’s privacy.

After switching to a PTO plan, the company now grants 20 paid days off per year (6.67 hours each semimonthly pay period) that employees can use for any purpose. In addition to reducing admin- istrative burdens and morale problems, the PTO plan discourages employees from taking sick leave, because doing so uses up vaca- tion time. Instead, employees now schedule most of their leave in advance, giving the employer an opportunity to arrange for cover- age or an opportunity to require that the leave be taken at a time more convenient for the employer.

PTO plans can be fine-tuned, depending on a particular employ- er’s experience and needs. For example, a day of scheduled leave might cost the employee only six hours out of his or her PTO bank, but unscheduled leave might cost the full eight hours. The employer might also impose a cap on the amount of PTO that can be accu- mulated in the PTO bank. Allowing employees to draw prescribed amounts of PTO in cash in lieu of leave time tends to limit overall absences. PTO time can also be cashed out with pretax dollars in the form of employer contributions to a 401(k) retirement plan or cafeteria plan.

And under carefully prescribed conditions, an employee may be permitted to give a portion of his or her accumulated PTO to another employee who faces a serious illness or family emergency but whose PTO is exhausted.

Other details need to be considered in implementing a PTO plan. For example, what happens to accumulated PTO at termination of employment—is it forfeited or cashed out? How is PTO coordinat- ed with leave under the Family and Medical Leave Act (FMLA)—is the employee required to exhaust PTO before taking FMLA leave, or may he or she take FMLA leave first? Of course, these same ques- tions arise with any leave policy the employer may have.

PTO plans seem to have many advantages over traditional leave arrangements: they are simpler to administer; they are more flexible;

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Leave Policies 147

they can be fine-tuned to meet the employer’s specific needs; they eliminate, or at least reduce, the need to examine personal medical information; and they discourage unscheduled sick leave. PTO plans deserve consideration.

But there are disadvantages of PTO plans as well. In those states that require accrued vacation to be cashed out at termina- tion, converting sick leave to PTO effectively means that accrued sick leave as well as vacation will now have to be cashed out. And in those jurisdictions that have adopted mandatory leave laws (discussed below), integrating a PTO plan and mandatory leave may result in paid vacation time for employees who would not otherwise earn vacation.

MANDATORY PAID LEAVE A growing number of states and local governments have adopted or are considering imposing paid leave requirements on employ- ers within their jurisdictions. (See Chapter 22 for paid leave requirements applicable to U.S. government contractors.) These mandatory paid leave laws may require employers to grant, say, one hour of paid leave for every 30 or 40 hours worked. The rate of accrual sometimes varies, depending on the size of the employer, with larger employers required to grant more paid leave than their smaller counterparts. Very small employers may be entirely exempt.

Typically, the leave is available for the employee’s own illness, for illness of a family member, and for the birth of a child or the placement of a child for adoption or foster care. Leave may also be available for a variety of other purposes, such as to obtain preventive medical care and for victims of domestic abuse to seek legal services or to temporarily relocate. So far, the laws prescrib- ing mandatory paid leave have not included vacation as one of the authorized leave purposes, but that may be changing as well.

The laws also address other issues of which employers must be aware: whether part-time employees qualify for leave, when leave

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begins to accrue, whether there is a waiting period before taking accrued leave, the amount of leave that may be taken in a given period, the amount that may be carried over, and how accrued but unused leave is treated on termination of employment.

For multistate employers, this mix of requirements and refine- ments poses a substantial record-keeping and compliance burden. One solution would be to enact a uniform federal law, but unless that law expressly supersedes any state or local laws (not likely in the present political climate), there would be no guaranty of uniformity. Another, somewhat less effective, solution would be for each state to adopt a uniform state law for employers within its jurisdiction and, at the same time, bar cities and counties in the state from legislating on the topic. That would ensure at least statewide uniformity.

Without any uniformity on the horizon, employers must decide how best to integrate mandatory leave laws with existing leave policies. One approach might be to adopt a PTO plan that is at least as generous as the most generous applicable leave law and that allows employees to use leave essentially for any purpose, including the purposes specified in the mandatory leave laws. This approach allows easier tracking of leave, since each employ- ee has only one PTO “bank account” instead of multiple bank accounts for each of the various mandatory and voluntary leave purposes. Other advantages and disadvantages of PTO plans are discussed above.

FAMILY AND MEDICAL LEAVE Some employers consider the FMLA, the ADA, and workers’ compensation laws to be a three-legged stool upon which employ- ees rest while milking their employer. It is true that before those laws, an employer could fire an employee for taking extended leave, no matter how good the reason, and had no obligation to offer a returning employee his or her old job, or any job at all. It is also true that under certain circumstances, an employee could

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Leave Policies 149

now be entitled to the protections of all three laws at the same time. The real problem for employers, however, is not so much that these laws give employees too many rights, but that the laws are complex and compliance can be tricky.

When leave qualifies under FMLA, a covered employer must do the following:

• grant an eligible employee up to 12 weeks of unpaid leave (26 weeks to care for a service member), including intermittent leave when medically necessary, within a 12-month period

• restore the employee to his or her former job upon return to work, or to an equivalent job

• maintain group health insurance coverage for the employee, including family coverage, on the same basis as if the employee had continued to work

ALERT! Every employer covered by the FMLA is required to post a notice explaining the

act’s provisions and providing information concerning the procedures for filing com-

plaints of violations with the Wage and Hour Division of the U.S. Department of

Labor (DOL). If the employer has any eligible employees and has an employee hand-

book, it must also include the notice in its employee handbook. See The Employer’s

Guide to the Family and Medical Leave Act, available on the DOL’s website.

Coverage and Eligibility Employers are covered under the FMLA if they have 50 or more employees (including part-time employees and employees who are on leave) for at least 20 weeks during the current or preced- ing calendar year. An employee is potentially eligible for FMLA leave if each one of the following conditions is met:

• The employee works for a covered employer. • The employee has been employed for at least 12 months (which need not be consecutive).

• The employee has worked at least 1,250 hours during the pre- vious year.

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• At least 50 employees work at the location where the employee works or within 75 miles of that location (as measured by the shortest route using service transportation).

Use of Leave An eligible employee is entitled to FMLA leave in the following circumstances:

• The employee has a serious health condition (including inca- pacity due to pregnancy and for prenatal medical care).

• The employee needs to care for a spouse, child, or parent with a serious health condition.

• The employee is caring for a newborn child within one year of birth.

• The employee adopts a son or daughter or has a child placed with the employee for adoption or foster care within one year of placement.

• A qualifying exigency arises involving a family member who is called to active military duty.

• The employee needs to care for a spouse, parent, child, or next of kin who is a service member or recent veteran undergoing medical treatment, recuperation, or therapy in an outpatient status, or who is on the temporary disability retired list for a serious injury or illness that is service-related or that was aggra- vated in the line of duty.

Serious health condition is defined as an illness, injury, impair- ment, or physical or mental condition that involves any of the following:

• treatment as an in-patient in a hospital, hospice, or residential medical care facility

• a period of incapacity requiring absence of more than three days from work, school, or other regular activity and that involves continuing treatment by a health care provider

• any period of incapacity due to pregnancy or prenatal care

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Leave Policies 151

• any period of incapacity due to a chronic, serious health condition

• a period of incapacity that is permanent or long term, even if there is no effective treatment

• absences to receive multiple treatment in which the underlying condition, if left untreated, would likely result in incapacity of more than three consecutive days

DOL regulations expand on the statutory definition of serious health condition. DOL regulations say that a condition qualifies as serious if the employee is incapacitated for more than three consecu- tive calendar days and the condition requires treatment two or more times by a health care practitioner.

A qualifying exigency is one of the following events arising from the employee’s spouse, child, or parent being called to active mili- tary duty:

• short-notice deployment in which a member of the military is called to active duty on less than seven days’ notice

• military events and related activities, such as attending family sup- port or assistance programs related to the active duty status of the service member

• child care and school activities, including arranging for alternative child care when a call to active duty necessitates a change in child care arrangements or providing child care on an urgent, immedi- ate need basis

• financial and legal arrangements to address the member’s absence for active duty

• counseling by someone other than a health care provider for one- self, for the service member, or for a child of the service member

• rest and recuperation, including spending time with a service member who is on short-term, temporary rest and recupera- tion—limited to 15 days

• post-deployment activities during the 90-day period following termination of the member’s active duty status, including attend-

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ing arrival ceremonies and events sponsored by the military or addressing issues arising from the death of the member while on active duty

• parental care to care for the parent of a service member who is incapable of self-care

• additional activities to address other events that arise out of the service member’s call to active duty as the employer and employee agree

QUICK TIP For employers covered by the FMLA, unexplained or undocumented leave should never

result in automatic discipline. The employer should first make an effort to determine

whether the leave qualifies as FMLA leave and, if so, whether the employee wishes to

take FMLA leave.

Medical Certification The FMLA requires employers to respond promptly to employee requests for FMLA leave. Employers may require a medical certifi- cation from a health care provider if the leave is based on a serious health condition. The employer must allow the employee 15 days to obtain the certification. The employer may, at its own expense, obtain a second opinion from another health care provider of the employer’s own choosing, so long as the health care provider is not under contract with, or regularly used by, the employer. If the two opinions differ, the employer and employee together choose a third health care provider, whose opinion is final and binding. Optional Form WH-380 (available on the DOL’s website) may be used for these medical certifications.

An employer may also develop its own medical form, but it may not request information beyond what is allowed by the FMLA and implementing regulations.

The list of health care providers whose medical certifications can trigger FMLA leave is long and somewhat surprising. As might be expected, it includes doctors of medicine and osteopathy, but they

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Leave Policies 153

need to be licensed only in the state in which they practice, not nec- essarily in the state where the employer or employee is located. The list also includes podiatrists, dentists, clinical psychologists, optom- etrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers (as long as they are practicing within the scope of their licenses), Christian Science practitioners, and any health care provider recognized by the employer’s health care benefits manager. Foreign as well as U.S.-licensed health care providers are included.

Employers must maintain the confidentiality of all medical infor- mation received in support of an FMLA leave request. Failure to do so could be deemed interference with the employee’s FMLA rights or retaliation against the employee for requesting FMLA leave.

ALERT! For disabilities covered by the ADA (or its state counterpart), the employer may be

required to offer leave as a reasonable accommodation, provided doing so does not

cause an undue hardship. A requirement to offer ADA leave is separate from FMLA

leave requirements and may even extend beyond the 12-week FMLA obligation.

Benefits An employee on FMLA leave is entitled to no more than 12 weeks’ leave within a 12-month period (26 weeks in the case of certain service members). The employer has some options in determining when the 12-month period begins and ends:

• the calendar year • the employer’s fiscal year • an employment year based on the employee’s start date • a rolling 12-month period that looks back from when the leave is to begin

• a rolling 12-month period that looks forward from when the leave is to begin

Using a fixed year, such as a calendar year, has the disadvantage that an employee could take 12 weeks’ leave at the end of year

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1 and another 12 weeks’ leave at the beginning of year 2, for a total of 26 consecutive weeks. Therefore, some employers prefer the backward-looking, rolling 12-month period method. Under that method, the employer may deny a new FMLA leave request if, during the immediately preceding 12-months, the employee took the full 12-week entitlement.

Whatever option the employer chooses must be applied consis- tently to all employees.

ALERT! When the leave is taken to care for a service member, only a 12-month period measured

forward from the date the employee’s FMLA leave is to begin may be used.

The employer must continue group health insurance cover- age during FMLA leave on the same basis as if the employee had continued to work. This means that if the plan is noncontribu- tory (meaning the employer pays 100 percent of the premium), the employer must continue to do so for employees under FMLA leave. On the other hand, if the plan is contributory (that is, if the employees pay some portion of their premiums), the employer may require an employee on FMLA leave to continue contributing on the same basis. The employer has a right to recover the employer’s portion of the premiums if the employee does not return to work when FMLA leave ends, unless the employee’s failure to return results from circumstances reasonably beyond the employee’s con- trol. If the employer has no group health plan, the employer does not have to provide health insurance during FMLA leave. The employer may, but is not required to, continue other benefits for employees on FMLA leave.

QUICK TIP When a husband and wife are employed by the same employer, they are entitled only to

a combined total of 12 weeks’ FMLA leave if the leave is based on the birth of a child or

the placement with them of a child for adoption or foster care.

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Leave Policies 155

Among the most difficult FMLA issues facing employers are intermittent leave and reduced work schedules because of the possi- bility of abuse. DOL regulations make clear that intermittent leave (leave taken in separate blocks due to a single qualifying reason) and a reduced schedule (such as temporarily switching from full time to part time) are both available under the FMLA. When the qualifying reason is a serious health condition, there must be a medical need for the leave that can best be accommodated through intermittent leave or a reduced schedule. When the leave is to care for a healthy newborn, the employer need not agree to such a leave arrangement. In charging intermittent leave against an employee, the employer must use the smallest time increment the employer uses in charging other forms of leave, but in no event more than one hour.

Although FMLA leave is generally unpaid, the employee may choose to substitute any accrued paid leave he or she might have. If the employee does not choose to do so, the employer may require the employee to substitute paid leave. When either the employee or the employer makes the choice to substitute paid leave, the leave is still charged against both the employee’s FMLA entitlement and the employee’s accrued leave. In other words, in this situation FMLA leave and paid leave run concurrently.

QUICK TIP Under the Fair Labor Standards Act, an employee who is exempt under one of the

white-collar exemptions must generally be paid a full week’s salary for any work-

week in which he or she does any work. (See Chapter 5.) However, when an exempt

employee takes unpaid FMLA leave for part of a week, the employer may reduce

the employee’s salary to reflect his or her absence without affecting the employee’s

exempt status.

When FMLA leave ends, the employer is required to restore the returning employee to the same or an equivalent position. DOL regulations define equivalent position as one that is virtually identical to the employee’s former position in terms of pay, ben-

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efits, and working conditions, including privileges, perquisites, and status. Assignment of an employee to a different shift on return from FMLA leave could violate the equivalent position requirement.

Compliance Employers that are covered by the FMLA should follow these guidelines:

• Post the FMLA notice (WH Publication 1420) required by the DOL.

• Adopt an FMLA policy and publicize it to employees (see Fact Sheet No. 28 of DOL’s Employment Standards Administration, available on the DOL’s website).

• If the employer has an employee handbook or a collective bar- gaining agreement, set out the FMLA policy in those documents.

• Be alert to leave that may qualify under the FMLA and make inquiry to determine whether the FMLA might apply whenev- er an employee requests any type of leave—whether or not the employee even mentions the FMLA.

• Never discipline an employee for unauthorized absence without first determining whether the FMLA might apply.

• When an employee requests FMLA leave, notify the employee within five business days whether the leave will qualify under the FMLA, whether a medical certification or other documentation in support of the leave is required, and what the employee’s rights and responsibilities are while on FMLA leave (DOL Form WH-381 satisfies the employer’s notice requirements).

• Maintain group health insurance for the employee during FMLA leave on the same basis as if the employee had continued to work.

• Upon termination of FMLA leave, restore the employee to the same or an equivalent position.

The only exception to the duty to restore the employee to the same or equivalent position is for key employees whose absence

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Leave Policies 157

would cause substantial and grievous economic injury to the operations of the employer—a tough standard to say the least. If the employer intends to deny restoration on this basis, the employer must first notify the affected employee and give the employee an opportunity to change his or her mind about taking FMLA leave.

FMLA leave may be terminated for an employee who states, unequivocally, that he or she does not intend to return to work or who fails to comply with the employer’s requirement to fur- nish periodic reports justifying continued leave.

The question whether an employer may discipline an employee while on FMLA leave does not arise frequently. But it can arise when, for example, the employee’s misconduct occurs before he or she takes FMLA leave. It is clear that an employer cannot discipline an employee because he or she is on FMLA leave, but nothing in the law prevents an employer from pursuing disci- plinary action unrelated to the FMLA while an employee is on leave.

CASE STUDY: MISCONDUCT WHILE ON FMLA LEAVE In a 6th Circuit Court of Appeals case (the 6th Circuit is headquartered in Cincinnati), the employer had a policy prohibiting employees from performing outside work without the employer’s permission. The employee in that case requested and was granted four weeks’ FMLA leave in connection with his wife’s childbirth, but while on leave he managed a restaurant that his wife had recently purchased. The employer fired the employee when he returned from leave, and the court upheld the firing. The court pointed out that the right to reinstatement under FMLA is not absolute, since an employer need not reinstate an employee who would have lost his job even if he had not taken FMLA leave. That was exactly the case here—the employee was fired for violating the company’s outside work rule, not because he took FMLA leave.

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The 6th Circuit decision relied on the DOL’s FMLA regulations that list a number of principles governing the requirement that the employee be reinstated to the same or equivalent position on return to work:

• If an employee fails to provide a requested fitness-for-duty cer- tification to return to work, an employer may delay restoration until the employee submits the certificate.

• An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.

• An employer may require an employee on FMLA leave to report periodically on the employee’s status and intention to return to work.

• An employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA’s job restoration or health benefits provisions.

• If the employer has a uniformly applied policy governing out- side or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave.

DOL regulations prohibit employers from discriminating or retaliating against employees and applicants who have taken FMLA leave. So an employer may not base a job decision on the fact that an existing employee, or a former employee who is reapplying, exercised rights under the FMLA. Similarly, if a job applicant took FMLA leave while with a different employer, the new employer cannot use that fact in deciding whether to hire.

Nor can an employer interfere with an employee’s exercise of his or her FMLA rights. One way an employer might interfere is asking an employee on FMLA leave to do work. Continually pestering an employee about work issues could amount to inter- ference. On the other hand, occasional, brief inquiries as to the location of a file or the status of a pending matter probably does not amount to interference.

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Leave Policies 159

CASE STUDY: NO INTERFERENCE OR RETALIATION UNDER THE FMLA In a case decided by the U.S. Court of Appeals for the 3rd Circuit (headquartered in Philadelphia), an employee took FMLA leave, claiming an inability to work because of leg pain. While on leave he went drinking with friends and on his way home was arrested and charged with DUI. The DUI was reported in the local paper, and when the employer saw the report, it realized that the drinking incident occurred while the employee was on leave. The employer fired its employee under the company’s dishonesty policy. The court decided for the company, saying that the company acted on the honest belief that the employee violated company policy and misused FMLA leave.

An employer does not interfere with an employee’s FMLA rights by requiring him or her to comply with a reasonable call-in policy in the event of an emergency or other unforeseeable need for leave. But a violation of the policy should not result in automatic disci- pline; instead, the employer should inquire whether unusual circum- stances prevented the employee from complying with the policy.

AMERICANS WITH DISABILITIES ACT LEAVE Granting leave may be a reasonable accommodation under the ADA. (The ADA is covered in depth in Chapter 17.) The Equal Employment Opportunity Commission (EEOC) offers the follow- ing examples of when ADA leave may be appropriate:

• obtaining medical treatment (for example, surgery, psychotherapy, substance abuse treatment, or dialysis), rehabilitation services, or physical or occupational therapy

• recuperating from an illness or an episodic manifestation of the disability

• obtaining repairs on a wheelchair, accessible van, or prosthetic device

• avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually

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warm temperatures that could seriously harm an employee with multiple sclerosis)

• training a service animal • receiving training in the use of braille or to learn sign language

The courts have ruled, however, that an employer generally need not grant indefinite leave under the ADA, since an employee on indefinite leave is not able to perform the essential functions of his or her job. However, the employer should not deny leave just because the return date is uncertain; instead, the employer should consider the likely duration of the leave given the nature of the disability and whether accommodating such leave would be an undue hardship.

It should be noted that a disability under the ADA is not the same as a serious health condition under the FMLA. An employee may qualify for temporary leave under the ADA because he or she is dis- abled, but at the same time not qualify for FMLA leave because the disability does not amount to a serious health condition. The reverse is also true. For example:

• noncomplicated pregnancy, routine broken bone, appendectomy, chicken pox, mild hernia, flu—covered only by the FMLA

• vision or hearing impairment, physical abnormalities that do not require inpatient care or a continuing course of treatment—cov- ered only by the ADA

MILITARY LEAVE The Uniformed Services Employment and Redeployment Rights Act (USERRA) requires employers to carry service members on leave status for benefit and seniority purposes while on active duty and to re-employ them when they return. USERRA also prohibits employers from discriminating against veterans and persons in the uniformed services. USERRA applies to all service members except those who receive dishonorable or bad conduct discharges, or who are dis- charged under less than honorable conditions. It protects employees who volunteer for service as well as those ordered to active duty.

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To be eligible for USERRA protection, the service member must notify the employer that he or she has been called to active duty, unless he or she is precluded from doing so by military necessity, or unless it is otherwise impossible or unreasonable to do so.

Employees on active duty are considered to be on furlough or leave of absence. As such, they are entitled to whatever benefits other similarly situated employees receive. In addition, the following conditions apply for employees on active duty:

• They may (but cannot be required to) use any accrued vacation or other paid leave.

• They may elect to continue any employer-sponsored health insurance coverage for up to 18 months. (For employees on active duty for less than 31 days, the employee can only be required to pay the portion of the premium normally charged to employees. For employees on active duty for more than 30 days, the employee can be charged up to 102 percent of the full premium.)

• They may continue to contribute to any retirement plan to which they were contributing before active duty.

• They must be treated as continuing to work for the employer for purposes of computing the employer’s pension plan funding obligation and benefits under any pension plan in which they participated. (This would be significant for defined benefit plans using a formula that includes a years-of-service component.)

A returning service member is entitled to be re-employed unless the employer can show that the employer’s circumstances have so changed as to make re-employment impossible or unreasonable or that re-employment would impose an undue hardship. This right applies to service members who have been on active duty for as long as five years, and, in some cases, even longer.

The returning service member is entitled to be placed in the posi- tion in which he or she would have been employed but for the call to active duty (or in a position with equivalent seniority, status, and

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The SHRM Essential Guide to Employment Law162

pay). Under this escalator provision, the employer must take into consideration any promotions or advancements the member would have received if he or she had continued to work.

If a member who has been on active duty for more than 90 days is not qualified for an escalated position, the employer must make reasonable efforts to help the member become qualified. For return- ing service members who became disabled while on active duty, the employer must make reasonable efforts to accommodate the disability.

To be eligible for re-employment, the returning service member must, after release from active duty, notify the employer of his or her intent to return to work. Strict time limits apply to this notice requirement:

• If the period of active duty was less than 31 days, the returning member must report to work on the first regular workday after release from duty (after allowing for an eight-hour rest period and safe transportation home).

• If the period of active duty was between 31 and 181 days, the returning member must apply for re-employment within 14 days after release from duty.

• If the period of active duty was more than 180 days, the return- ing member must apply for re-employment within 90 days after release from duty.

These time limits can be extended for up to two years or more in the case of a returning service member who is hospitalized or convalescing from an illness or injury suffered while on active duty.

Once the employer has re-employed a returning service member, the employer is restricted in its ability to discharge the member. Except for discharges for cause, members who have been on active duty for 180 days or less cannot be fired for a period of 180 days after re-employment. Members who have been on active duty for more than 180 days cannot be fired for one year.

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Leave Policies 163

ALERT! Docking the salary of exempt employees who are on temporary military leave of less

than a full workweek will cause loss of the exemption for FLSA purposes. However,

an employer may offset any compensation received by the employee for military

service. (See Chapter 5 for more details.)

OTHER LEAVE State laws frequently have their own provisions regarding required leave. Be alert to the following possibilities in your state.

Extended Leave State FMLA laws are becoming increasingly popular, although eli- gibility and leave periods do not necessarily coincide with federal law.

Jury Duty Federal law protects the jobs of employees who are serving as jurors in federal courts, and most states provide similar protection for employees serving at the state level. Some states even require salary continuation during periods of jury service. Even when salary con- tinuation is not required, it is common for employers to pay full salary or at least make up the difference between juror fees and regular salary. Docking the salary of exempt employees who are on jury service of less than five days will cause loss of the exemption for FLSA purposes, although an employer may offset any juror fees received by the employee.

Figure 8.1 contains a provision recommended for inclusion in employee handbooks regarding jury duty.

FIGURE 8.1: JURY DUTY

The company encourages employees to fulfill their civic obligation to serve as jurors when summoned. The company will not discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s jury service, or the attendance or scheduled attendance in connection with such service.

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The SHRM Essential Guide to Employment Law164

ALERT! Asking an employee to lie about his or her availability for jury duty is a criminal offense.

Maternity and Paternity Leave See Chapter 15.

Testimony Some states protect the jobs of employees who are subpoenaed to appear in court as witnesses or who are attending court under a vic- tim’s right law. Docking the salary of exempt employees in these circumstances will cause loss of the exemption for FLSA purposes, although an employer may offset any witness fees received by the employee.

Election Day Leave Some states require employers to grant time off for employees to vote on election day.

School Activities Some states require that time off be granted for a parent to attend his or her child’s school activities.

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