All municipal employers should be aware that new rules regarding the Family and Medical Leave Act (FMLA) have gone into effect as of August 5, 1993. If employees are covered under a collective bargaining agreement in effect as of August 5, 1993, the FMLA does not apply to those employees until February 5, 1994 or the date the agreement terminates, i.e., its expiration date, whichever is sooner.¹

The FMLA is legislation passed by Congress that allows eligible employees of a municipality to take up to 12 weeks of unpaid leave to attend to:

• the birth of a child;

• placement of a child for adoption or foster care;

• the care of a family member such as a child, spouse or parent with a serious health condition, or

• their own serious health condition.

The rules for this new law are found in the June 4, 1993 Federal Register.

Who is eligible to take family leave under this Act?

It is very important to note that while all local governments are "covered" by FMLA, only those employees who work for a municipality with 50 or more employees at a single worksite or within a 75 mile radius are eligible to take leave under the provisions of this federal law. Thus, a city with 49 or fewer employees at the time FMLA leave is requested has no employees who are eligible to take family leave under the FMLA.²

When counting the number of employees, employers must include all staff members actively at work or those expected to return to work within a foreseeable period of time. Thus, part-time, seasonal, and employees on disability leave should be included. It is also important to note that eligible employees are those who have been employed by the municipality for at least twelve months, and who have worked at least 1,250 hours in those twelve months preceding the commencement of the leave.

Must all health benefits be provided during the leave period?

Yes. The Federal government has stipulated that during any leave taken under the FMLA, an employer must " ... maintain the employee's coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period."³ Should the employer increase benefits during the period of FMLA leave, the employee is entitled to those increases as if they were still working.

What is the employee entitled to upon return from leave?

The rules state that "On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment."⁴

It is important to note that the employee has "no right to return to the same position."⁵ This means that while an equivalent position must be provided, if the position held prior to FMLA leave was filled, the employee is not entitled to be placed in that same position, only an "equivalent" one.

However, an "equivalent position" is one that must have " ... the same pay, benefits and working conditions, including privileges, prerequisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority."⁶ Employees are also entitled to pay increases that would have been granted unconditionally, such as cost of living increases.

In addition, "benefits must be resumed in the same manner and at the same levels as provided when the leave began, and subject to any changes in benefit levels that may have taken effect during the period of FMLA leave affecting the entire workforce, unless otherwise elected by the employee."⁷

Certain employees, however, known as "key" employees need not be reinstated in all cases. "Key" employees are those salaried employees who are among the highest paid ten percent of the workforce. After returning from FMLA leave, if the employer can prove that the reinstatement of this employee will cause "substantial and grievous economic injury" to their operations, then restoration of this employee may be denied. Determining the hardship imposed by restoration of a

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key employee must be done on a case-by-case basis.

Can an employee be laid off during the leave period?

Yes. An employer must "be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment."⁸ This means that if an employee would have been laid off during the leave period even if they had been employed, they are not entitled to their job upon return. The burden of proving this, however, rests on the employer.

Are employees who take FMLA leave protected from discrimination?

Yes. Employees who exercise their leave rights under FMLA are protected from any employer actions that may place negative connotations on the use of this leave time. They are also protected from any employer retaliation, or when commenting about the denial of any rights they are entitled to under the FMLA.⁹

Is the employer required to give employees notice of their FMLA rights?

Yes. Under the FMLA rules, a notice explaining the FMLA's provisions and information regarding procedures for filing complaints with the Wage and Hour Division of the U.S. Department of Labor must be posted in a conspicuous place where it can be readily seen by employees and applicants for employment. A notice sufficient for this purpose is found in Appendix C of the Federal Register rules to the FMLA. This notice may be reproduced, but must appear no smaller than 8 1/2" by 11". Failure to display this information will result in a fine of no more than $100.¹⁰

In addition, when an employee notifies an employer of their intent to take leave under FMLA, the employer must give the employee a notice detailing their specific FMLA rights, and their responsibilities under this law.

Are employees required to notify employers of their intent to take FMLA leave?

Yes. Employees must notify employers thirty days in advance if the need for FMLA leave is "foreseeable." If the need is not foreseeable within that time period, employees must notify the employer "as soon as practicable," meaning verbal notice within one or two working days before leave is needed, unless an extreme medical emergency does not allow the employee to meet this requirement.

If an employee fails to meet the requirement for notifying their employers of a "foreseeable" need for FMLA leave, the employer may " ... deny the taking of FMLA leave until at least 30 days after the date the employee provides notice to the employer of the need for FMLA leave."¹¹

Employers may also require that employees provide a medical certification from a health care provider when the leave is taken for medical purposes. The employee must be notified in advance by the employer that medical certification is necessary. If there is reason to suspect the validity of a medical certification, an employer may, at their own expense, request up to three opinions from other health care providers.

In addition, if an employee fails to meet the requirements for medical certification when leave is foreseeable, they may be denied the taking of leave until certification is provided.¹²

An employer may also require recertification of requests for leave for an extended illness or injury. In addition, an employer may require an employee to make periodic status reports on their leave status.

Summary

FMLA is a package of comprehensive family leave rights that is available to employees who work for municipalities employing 50 or more staff. Legal advice may be necessary in some situations. For copies of this federal rule, call the Wage and Hour division of the U.S. Department of Labor at 202/219-8412. Additional information may be obtained from Jim McCurdy at the IML (217/525-1220). •

12. Ibid., sec, 825.312(b).

Page 14 / Illinois Municipal Review / October 1993