Does your dermatology practice comply with the Family and Medical Leave Act?

By Jeremy Lewin, JD, Ben Tesdahl, JD, LL.M, and Robert M. Portman, JD, MPP, September 1, 2022

DermWorld covers legal issues in Legally Speaking. This month’s authors are health care attorneys with Powers Pyles Sutter & Verville in Washington, D.C. Portman is also general counsel for the AAD and AADA.

The Family and Medical Leave Act (FMLA) is a federal law that entitles eligible employees of covered employers to take unpaid, job-protected leave for certain family and medical reasons. Coverage and eligibility rules are complicated, and violations can lead to steep fines, significant legal expenses, and claims for lost wages. Therefore, it is critical that all dermatology practices and other dermatology employers understand the applicability of the FMLA.

Coverage and eligibility under the FMLA

Private sector employers are subject to the FMLA if they have employed 50 or more employees in at least 20 work weeks during the current or preceding calendar year. Employees are eligible for protected leave under the FMLA if they have worked for a covered employer for at least 12 months, have worked for at least 1,250 hours over the 12 months immediately prior to taking FMLA leave, and work at a location where the employer has at least 50 employees within a 75-mile radius.

Adding to the complexity, an employer might have at least 50 employees across all locations, but no employees working at a location where at least 50 employees work within a 75-mile radius. In this case, the employer would be subject to the rules of the FMLA, such as posting employee notices about FMLA rights, but no employees would be eligible for leave under the FMLA.

Moreover, employers may also be subject to one of the many “mini-FMLA” laws enacted at the state level. These state laws often apply to smaller employers and the protections available to eligible employees vary from state to state. While state family and medical leave laws are beyond the scope of this article, the following example may help illustrate the interplay between the FMLA and related state law:

ABC Dermatology has four offices: Phoenix with 60 employees; Denver with 53 employees; Boulder, Colorado with 40 employees; and Vail, Colorado with 18 employees. Because ABC Dermatology has more than 50 total employees, it is a covered employer and must post FMLA notices for its employees at all locations. Provided they meet other eligibility requirements (e.g., length of employment), all employees at the Phoenix, Denver, and Boulder locations would be eligible for leave under the FMLA because they work at office locations where at least 50 ABC Dermatology employees work within a 75-mile radius. Employees at the Vail location are not eligible employees under the FMLA because the Vail office has only 18 employees and is more than 75 miles from the Denver and Boulder locations. Employees at all Colorado locations would be eligible for protections under state law because Colorado has enacted its own mini-FMLA statute covering all private employers, regardless of size.

General overview of FMLA leave

The FMLA entitles an eligible employee working for a covered employer to take up to 12 weeks of unpaid leave in a year for a wide range of circumstances. Specifically, FMLA leave is allowed:

• For the birth and care of the newborn child of an employee;

• For placement with the employee of a child for adoption or foster care;

• To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition;

• For a serious health condition that makes the employee unable to perform the essential functions of their job; or

• For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or called to covered active-duty status.

Additionally, an eligible employee may also take up to 26 work weeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the service member.

Employees using FMLA leave are entitled to have their position (or a comparable position in terms of pay, advancement opportunities, and duties) preserved or restored upon returning from leave, and in addition, any group health benefits must continue during the FMLA leave.

Under some circumstances when an employee can show it is “medically necessary,” employees may take FMLA leave on an intermittent or reduced schedule basis, meaning that an employee may take leave in separate blocks of time or by reducing the time they work each day or week, for a single qualifying reason. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operations. If FMLA leave is for the birth, adoption, or foster placement of a child, use of intermittent or reduced schedule leave requires the employer’s approval.

If allowed by an employer’s leave policies, employees may choose, or employers may even require, that employees use accrued paid sick or vacation time to cover some or all the FMLA leave period. Therefore, employers should carefully review their policies in this regard. If an employer intends to require employees to use their accrued and unused vacation and sick leave during their approved FMLA leave, it must notify employees that their paid time off will run concurrently with unpaid FMLA leave. Employers who do not require concurrent usage often are surprised to learn that an employee returning from a 12-week FMLA leave may still have a significant bank of additional leave available upon their return.

Employer notice requirements

An employer covered by the FMLA is required to conspicuously post a notice explaining the statute’s provisions and providing information for filing complaints of violations with the Department of Labor’s Wage and Hour Division. Willful failure to do so may subject the employer to a civil fine. The Department of Labor has prepared a free poster that employers can use to satisfy this requirement.

In addition to posting a notice explaining FMLA rights, covered employers must:

• Include information about the FMLA in their employee handbooks or provide information to new employees upon hire;

• Provide an employee with notice concerning their eligibility for FMLA leave and their rights and responsibilities under the FMLA when that employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA-qualifying reason; and

• Notify employees whether leave is designated as FMLA leave and the amount of leave that will be deducted from the employee’s FMLA entitlement.

Employee requirements

Employees must comply with their employer’s usual and customary requirements for requesting leave and provide enough information for their employer to reasonably determine whether the FMLA may apply to the leave request. Employees generally must request leave 30 days in advance when the need for leave is foreseeable. When the need for leave is unforeseeable, employees must provide notice as soon as possible and practical under the circumstances.

When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. However, once FMLA leave is granted for a particular qualifying reason, the employee must reference that reason or the FMLA if additional time off is required for the same condition or circumstances.

Certification of FMLA

When an employee requests FMLA leave due to their own serious health condition or a covered family member’s serious health condition, the employer may require that the employee obtain a certification from a health care provider in support of the request, at the employee’s expense. Information on the certification may include: contact information for the health care provider; the date the serious health condition began and how long it is expected to last; appropriate medical facts about the condition; for a request for leave for the employee’s own serious health condition, information showing that the employee cannot perform the essential functions of the job; for a request for leave to care for a family member, a statement of the care needed; for intermittent leave, information showing the medical necessity for intermittent or reduced schedule leave and either the dates of any planned leave or the estimated frequency and duration of expected incapacity due to the condition.

The employer may use a human resource professional, a leave administrator, another health care provider, or a management official to contact the health care provider to authenticate or clarify the certification. (Note that the employee’s direct supervisor may not contact the provider.)

An employer may deny a certification that is incomplete or insufficient, provided that the employer gives the employee a written notice stating what additional information is required to resolve any deficiencies. Additionally, if an employer has reason to doubt that a completed certification is valid, the employer may require second medical opinion by a provider of its choice, at the employer’s expense. If the first and second opinions differ, the employer may require the employee to obtain a third certification by a provider mutually agreed to by the employer and the employee, again at the employer’s expense. Under certain circumstances, employers may also require periodic recertification of a serious health condition. Employers should ensure they have a reasonable good faith basis before making a request for a second or third opinion or recertification.

Enforcement and damages

It is unlawful for any employer to interfere with or deny the exercise of any right provided by the FMLA. Like most employment laws, the FMLA also prohibits retaliation against any employees for exercising their rights under the FMLA or for opposing any practice, or because of involvement in any proceeding, related to the FMLA. The Department of Labor Wage and Hour Division has enforcement authority over alleged FMLA violations.

In addition to government enforcement, individuals may bring private actions in federal court. Awards may include lost past and future wages and attorney fees, which often exceed the value of the employee’s lost wages. Successful plaintiffs also receive additional “liquidated damages” equal to the amount of the employee’s award for lost wages, unless the employer can demonstrate that it acted in good faith.

Because employees eligible for leave under the FMLA often have medical conditions that also qualify for protection under the Americans with Disabilities Act (ADA), FMLA litigation is often accompanied by ADA claims. Remedies for claims under the ADA largely track those available under the FMLA but also may include punitive damage awards designed to punish the employer and deter future violations.

Conclusion

While the foregoing information provides a general overview of the law, compliance with the FMLA is complex and often involves a very fact-specific analysis. Additionally, as noted above, employees may also be entitled to protections under the ADA and state mini-FMLA laws. Where multiple laws apply, enforcement agencies and courts generally require that employers provide the protections most generous to the employee.

The Department of Labor offers a good “Frequently Asked Questions” document on the FMLA but given the complexities of the FMLA and the multiple other laws that may also apply, employers may wish to seek the help of legal counsel to avoid running afoul of the law.

This article is provided for informational and educational purposes and is not intended to provide legal advice and should not be relied upon as such. Readers should consult with their personal attorneys for legal advice regarding the subject matter of this article.

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