Family and Medical Leave Act of 1993 (FLMA)
Under the Family and Medical Leave Act of 1993 (FLMA) has clearly defined what can be considered by the employees to be a “serious health condition” (Basi, 2018). A health condition is determined to be serious, be it either, illness, impairment, injury or physical or mental condition if it meets two sets of criteria. First, there is a need to provide continual treatment by a health care provider over an extended period. Second, the patient needs inpatient care in a hospital, residential medical care facility or a hospice (Basi, 2018). There is a constant challenge presented on making proper identification of what qualities to be a severe health condition among employees. Thus an employer when an employee requests to be given FMLA leave for a serious health condition may require a medical certification by the employee health care provider to confirm the situation is indeed difficult. Moreover, if the employer still doubts the validity of the certification provided, then the employer may require the employee to seek a second opinion from a different health care provider.
Breunlin v. Village of Oak Park Case No. 07 C 4627. is an example of where an employer challenged if the employee has suffered from a “serious health condition”. During the case the plaintiff Cynthia Breunlin brought into action against her former employer the Village of Oak Park (the “village”) with claims she was wrongfully terminated in retaliation of her taking a leave of absence according to FMLA. The employer declined Breunlin allegations and stated she was terminated based on a legitimate and non-retaliatory reason in the Single-Family Program she was managing at the time. According to Village, Breunlin failed to produce the needed documents that would warranty her to be approved to get required medical leave under the FMLA. However, there was no evidence according to Village that she was receiving psychiatric treatment for the mental anguish she had received after being terminated by Village and Breunlin did not intend to call her treating doctor to speak as her witness to the matter. Therefore, as a result of Breunlin objection to producing medical records are sustained, and Village motion to compel is denied.
Question 2: (2) types of legal claims
According to FMLA employees are permitted to make claims based on two principles: “interference” with rights or “entitlement” claims and “discrimination”. Employers are prohibited or discouraged from discouraging any person from exercising his or her rights under the FMLA (Van Kleunen, 2019). Thus, the employers are not permitted to discriminate employees from taking their leaves and making it seem like a negative factor in employment actions such as promotion. Several conditions may cause an employee to file for claims including refusing to allow an employee to take FMLA leave, failure to inform an employee he or she has the right to request for leave once approved. Also, manipulate employees responsibilities under FMLA and failure to advise an employee of his or her rights under the FMLA leave once the employee has presented enough evidence to prove he or she needs to be needed FMLA leave based on medical conditions.
Any violation of FMLA or its regulations can potentially give rise to an interference claim (Van Kleunen, 2019). If the claim is proven, then it can result in liability on the part of an employer for either lost compensation, liquidation damages or any other kinds of relief. Also, FMLA prohibits retaliation against an employee who has filed complaints alleging violations of the FMLA or testified in any proceeding under Act 2.
According to FMLA, there are two different ways in which an employee can assert claims for violations. First, an employee can file a lawsuit in the federal court or state. The complaints that are filed in the courts are treated in the same manner as the other kinds of civil litigation. Special treatment is given to the employees who make these fills as they are not required to file a charge of discrimination or complaint with the Equal Employment Opportunity Commission of the Department of Labour before they are expected to file a lawsuit in either the state court or federal. Second, an employee is encouraged to fill an administrative complaint with the United States Department of Labor. Once an employee has filed a complaint with the U.S Department of Labor, the claims are then investigated by the Department of Wage and Hour Division. The preference is to evaluate if the employee is right and deserved to be given fair treatment to seek the needed medical attention.
Question 3 “intermittent leave.”
Intermittent leave defined as either family or medical leave that is taken by an employee in separate periods but as a result of a single illness or injury that has been sustained by the employee (Van Kleunen, 2019). Thus, the employee does not take one continuous period leave but instead takes broken periods of leave. For example, the intermittent leave may include being periods that range from an hour to more than several weeks then the employee resumes work and later takes another break. The breaks are often organized in based on medical appointments or periods are accepted overs time spread to attend a medical treatment for more than six months to attend to medical treatment like chemotherapy (Van Kleunen, 2019). About the arrangement organized between the employee and the employer, the employee stops being considered as a full-time o part-time as the employees’ usual number of working hours are often reduced to almost half the work time. According to FMLA, intermittent leave is often considered based on severe own health condition to either take care of an immediate family member or personal injury. Thus, the consent must be accorded based on the medical need for leave, and it means the medical necessity can only be delivered based on the intermittent or reduced leave schedule.
There has over time been a headache on the proper way to manage intermittent FMLA leave in keeping track of leave in increments smaller that are noted especially fitted on work leave. Often the leave entitlement is calculated as 480 hours per FMLA year that is about 40 hours per week. However, different factors need to be considered by the employee when calculating the shortest period to be given for the intermittent FMLA leave (Carroll, 2018). For example, it is essential to first check on how long the employee is entitled to get on an average. Also, the fluctuation on the workweek, for example, employees whose schedules are identified to vary from week to week then it is difficult to determine the correct number of hours the employee is entitled to leave entitlement.
Employers are expected to focus on qualifying employees for FMLA and ensure they keep track on leave time available and provide leave is only used for qualified reasons. There is an essential critical record that needs to be followed by the employer to ensure they comply with FMLA law (Setty, Koball, Hartig &Sutcliffe, 2018). It is important to keep essential payroll records by indicating the employees’ position, pay rate and terms of compensation. The employer is required to keep history on when FMLA leave taken this includes the dates employees took the proposed leave and the request for consent. Employers are required to keep all records about FMLA go and ensure written FMLA notices are written regarding request forms and notes of all conversation with the managers. It is essential to keep all medical records and separate them from personnel files.
An example of a case Boadi v. Centre for Human Development identified regarding “intermittent leave.” Involved Grace and Center for Human Development (CHD) where the employer failed to give FMLA leave and was charged highly. Grace had been admitted to the hospital, and when she resumed working, he was informed by CHD her job had been terminated given she had abandoned her work. The ruling was made by the jury which concluded Grace had been wrongly removed from her post. CHD had grossly violated the FMLA rules when the employer declined to consider the doctors’ medical certification she presented medical certification. The company was tasked to aware her approximately $150,000 in both benefits and back pays and her attorney fees.