Construction Law

12 Common Questions Employers Have About the Family and Medical Leave Act (FMLA)

With the spread of the coronavirus disease (COVID-19) across the country, construction employers have been presented with an array of new challenges, including ensuring the safety of their crew and adapting their operations to new regulations. Along with these newly developing challenges, the constant challenges that face construction professionals are still prevalent, including avoiding disputes, meeting deadlines, providing quality work, and maintaining a profit.

Currently, most states have issued stay-at-home orders mandating that everything but essential businesses temporarily close. As construction work is usually considered essential work, contractors face several unique challenges. Along with dealing with COVID-19-related issues, most construction crews are presently working with a reduced crew. This is due to social distancing requirements, absenteeism, and business needs. With fewer workers and more responsibilities, many workforces will be put to the test in the coming weeks.

Focusing on the Health of Construction Professionals

We have recently featured several articles on the newly enacted Families First Coronavirus Response Act (FFCRA). Effective April 1, 2020, this extension of family and medical leave requires employers to provide their workforce with paid sick leave for COVID-19-related reasons. Although it’s important to stay informed of the latest COVID-related legislation for paid leave, it’s equally important to not overlook an employer’s responsibilities under the standard Family and Medical Leave Act (FMLA).

As the industry with the highest rate of injuries in the United States, construction will continue to see repetitive stress injuries that are more prone to occurring if workers are working longer hours with reduced crews. When this does happen, employees may require FMLA leave to seek treatment.

Here are twelve common questions a Chattanooga contractor attorney receives about family and medical leave requests:

1) When is an employee eligible for leave under the FMLA?

Public sector companies and private companies that have at least 50 employees employed at one location are required to provide FMLA leave. Employees are eligible for FMLA leave if they have worked for at least 12 consecutive months at a business, including over 1,250 total hours during this time.

2) What are qualifying reasons for leave under the FMLA?

An employee can take qualified leave under the FMLA if:

They have a serious health condition
They are caring for an ailing family member (with a serious condition)
They are bonding with their recently born son or daughter
For specific military-related reasons

3) What does the FMLA consider a “serious health condition?”

The FMLA defines a serious health condition as “an illness, injury, impairment, or physical or mental condition that involves: inpatient care in a hospital, hospice, or residential medical care facility; or. continuing treatment by a health care provider.” As determining a serious health condition may need to be performed on a case-by-case basis, consult a construction law attorney in Franklin, TN, for assistance with determining if your employees qualify for leave.

4) Is FMLA leave paid time?

No, but it can be, depending on company policies. FMLA leave doesn’t require an employer to compensate their employee during their leave; it strictly allows the employee to have approved time away from work. However, if an employee has accrued paid time off, they may be compensated during their time away depending on their employee agreement and the company policies in place.

5) Can an employee take leave periodically?

Yes. FMLA leave is available for when it’s necessary, meaning that some employees may take leave intermittently (as long as it’s granted by their employer). For most businesses, the key is for employees to be in close communication with their employer regarding their need for medical treatment and their treatment schedule. With that being said, not all of the above eligibility requirements for FMLA leave apply to intermittent leave.

6) How is intermittent leave approved?

Intermittent leave is subject to approval from the employee’s healthcare provider. If an employer’s operations are significantly impacted by intermittent leave, the company may be able to transfer the employee to another similarly situated position with equal pay and benefits to accommodate the employee’s leave. Consult our Chattanooga contractor attorneys to learn more about employment options for your workers under this form of FMLA leave.

7) Can an employee take leave to care for a friend or relative?

No. Employees can take leave to care for an immediate family member, including their spouse, parents, or a son or daughter. An employee that stands in loco parentis to a child may take leave if they are responsible for the day-to-day responsibilities to care for and support the child.

8) Does an employee need to provide proof to their employer of their condition?

Yes. As part of the determination process, an employer will evaluate the information they receive from their employee. This can include asking the employee for more information related to the reason the employee needs leave. If the information is incomplete or insufficient, the employer should make a written request for more information before they make a final decision.

9) Can an employer request their employee to seek a second opinion?

Yes. An employer has the right to request an employee seek a second or even third opinion if they have reasonable doubt that the original certification is valid. The employer can select the healthcare provider to provide the second opinion (and pay the costs). A third opinion can be utilized if the first and second opinions result in different conclusions of the condition.

10) Can an employer contact an employee’s healthcare provider?

Yes, but the employer can only contact the healthcare provider to seek authenticity and clarification that the medical certification was filled out by the healthcare provider. An employer cannot ask the healthcare provider any medical-related questions beyond the information within the certification form. It’s best to consult a construction lawyer in Clarksville, TN, to learn more about the requirements under the Health Insurance Portability and Accountability Act (HIPAA) before you contact a medical provider.

11) Can an employer deny an FMLA leave request?

Yes, but the employer is required to notify the employee in writing that the leave request has been denied. There are many reasons why an employer may deny a request. Most requests are denied because the request does not qualify as FMLA-protected.

12) Can an employer request medical certification before an employee returns to work?

Yes. This common practice is referred to as a fitness-for-duty certification. It’s important that this policy is uniformly-applied by employers and that all similarly-situated employees that exercise their right to take leave (for a serious health condition) undergo this process. This form of certification can only cover the health condition that resulted in the employee’s need for leave. The point of a fitness-for-duty certification is to address that the employee can perform the essential functions of their position.

Employers need to do everything in their power to comply with FMLA requirements. As it states on the Department of Labor’s website, “Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right.” Employers should also not retaliate against employees that exercise their right to take leave. To learn more about your requirements under FMLA rules and regulations, consult a construction law attorney Clarksville, TN.

If you would like to speak with a construction lawyer in Franklin, TN, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.