Seriously? The Series, Episode 1
How many times have you researched an FMLA case or read an article about a leave law and found yourself thinking “SERIOUSLY?” Well, I couldn’t make this stuff up. An effort to capture everything that makes me raise an eyebrow would no longer be a blog, but could possibly rival War and Peace (and I’m no Tolstoy). Let’s just consider this chapter 1 and see where it takes us.
Starting with the capital of our fine nation, the District of Columbia, the possible scenarios which can lead to a confusing and legitimate absence are almost too numerous to count. Let’s review ‘The Basics’ and the things that a dear friend of mine calls the ‘Ya, but’ list – that list of things that can’t be forgotten, but almost always are. For example when a novice says “It’s just an unpaid leave”, the experienced FMLA guru says “Ya, but, remember there are paid leaves based on employee headcount.”
The Basics – DC FMLA:
- Employers only have to have 20 employees, rather than 50 like the federal FMLA.
- Employees only have to work 1000 hours in the last year, rather than 1250 like under federal FMLA.
- The amount of time allowed is 16 weeks for “Family” leave and 16 weeks for the employees own “Medical” leave, in a 24 month period.
- The definition of a family member includes those as defined by the federal FMLA, but also covers any family member related by blood or marriage (so don’t be too quick to deny that leave for Gomez when Uncle Fester gets ill), and anyone with whom they share or have shared within the last year, a mutual residence and are in a committed relationship. Given the cohabitation statistics, they may as well have listed this last definition as “anybody who is your BFF!”
The ‘Ya, but’:
- Federal and DC FMLA will only run concurrently if the employee is eligible for both, has time available under both, and the family member relationship is qualified under both.
- DC Accrued Sick & Safe Leave Act: Provides job protected PAID leave for employee serious health conditions, preventative care or caring for a family member due to stalking, domestic violence or abuse. Dependent on the size of the employer and calculated on the employee’s schedule employees are entitled to:
- 100+ Employees get 1 hour for every 37 hours worked, up to a total of 7 days per year.
- 25-99 Employees get 1 hour for every 43 hours worked, up to 5 days per year.
- 24 or Fewer Employees get 1 hour for every 87 hours worked, up to 3 days per year.
- DC Small Necessities Law provides that an employee is to receive up to 24 hours of unpaid leave in any 12-month period to participate in school related events.
Picture This Scenario
An employee has a series of absences. There is a combination of leaves between the serious health condition of the employee and the health condition of her mother-in-law. The employee is eligible and all conditions are legitimately serious. As a result, over the course of 36 months (approximately 156 weeks), this employee has been out on job protected FMLA and state leave for 76 weeks, or 49% of their total employment during that period.
Even that ratio assumes they have not also taken their allotted 3 days/year for parental involvement in school related activities or non-health related PTO. Now imagine if they were not eligible for federal FMLA for the first absence, so the employer must provide protection under state, but not federal FMLA until the 1250 hours are reached. Taking into consideration the size of your company, the length of employment of each employee, the reason for the employees leave, the relationship of the family member, and the combination of how leaves are taken; the old adage rings true that the devil is in the details. You don’t want to end up burned because you didn’t know what you didn’t know.
Knowledge is not only power; but in the arena of FMLA and leave of absence management, if you want to be successful, it’s the price of admission. The good news is that there are resources to obtain that knowledge.