Does An Employer Have To Pay Bonuses To Employees Who Have Been On FMLA Leave?

The Family and Medical Leave Act (“FMLA”) requires that employees be restored to the same or an equivalent position. If an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work. The FMLA leave may not be counted against the employee. For example, if an employer offers a perfect attendance bonus, and the employee has not missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon returning from FMLA leave.

On the other hand, FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority. For example, an employee on FMLA leave might not have sufficient sales to qualify for a bonus. The employer is not required to make any special accommodation for this employee because of FMLA. The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave (as appropriate) are treated.

Are There Other Circumstances In Which an Employer Can Deny FMLA Leave or Job Reinstatement?

In addition to denying reinstatement in certain circumstances to “key” employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.

Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave.

Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated “12 month period” no longer have FMLA protections of leave or job restoration.

Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted.

Under What Circumstances Is Leave Designated As FMLA Leave And Counted Against The Employee’s Total Entitlement?

In all circumstances, it is the employer’s responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by the employee. Leave may not be designated as FMLA leave after the leave has been completed and the employee has returned to work, except if:

• the employer is awaiting receipt of the medical certification to confirm the existence of a serious health condition;
• the employer was unaware that leave was for an FMLA reason, and subsequently acquires information from the employee such as when the employee requests additional or extensions of leave; or
• the employer was unaware that the leave was for an FMLA reason, and the employee notifies the employer within two days after return to work that the leave was FMLA leave.

How much notice does an Employee have to give to take FMLA leave?

If you can foresee the time period during which you will need to take leave, such as if you will be giving birth to or adopting a child, then you must give your employer 30 days notice of your FMLA leave. If, however, the event causing your need to take leave is not foreseeable, or you are unable to give your employer notice 30 days beforehand, then you must give your employer notice as soon as possible, depending on the facts and circumstances. 

Extended FMLA leave for Military Families

In 2008, the FMLA was amended to extend leave protections to the families of U.S. Armed Forces. The modification, included in the 2008 National Defense Authorization Act, requires employers to provide up to 26 weeks of FMLA leave to eligible employees to care for recovering, injured, or ill service members and 12 weeks of leave due to any “qualifying exigency” that occurs when a covered family member is or has been called for active duty. However, the qualifying exigency provisions will not be effective until the US Department of Labor (DOL) issues final FMLA regulations defining the term “qualifying exigency.”

This FMLA amendment does come with its share of new (and tighter) guidelines. Employees now have to let their employer know they need FMLA leave no later than the next day following a qualified need for leave (at present, workers can take 2 days before they report in). Also, under current law, employers are barred from contacting a worker’s health provider about the need for leave. The proposed changes would remove that restriction. Presently, workers can qualify as needing continuing treatment if they make two medical visits over any period of time—this can include months. The new changes would require these two visits to take place within a 30-day period.

In light of these new, extended-leave modifications, employers also need to be prepared with strategies to combat possible lengthy employee absences—from ensuring all employees are cross-trained on jobs within their departments (to fill in if and when co-workers leave), to preparing employees to work additional hours. HR executives are required to notify all employees of the new law’s expanded scope and post new FMLA posters, policies and forms to reflect new leave provisions.