FMLA regulations and monetary issues

by on January 14, 2010 · 0 Comment POSTED IN: HR Info Center

To pay or not to pay?

Should you offer paid leave even though FMLA regulations don’t require you to do so?

HR managers say that only about 6.5% of employees who qualify for FMLA leave actually take advantage of it. The reason: Most employees can’t afford to take 12 weeks of unpaid leave. FMLA was created to help employees balance work/life issues, but FMLA regulations offer no financial security.

Some experts suggest that employers who offer paid FMLA leave would have a powerful retention tool and a buffer against FMLA-related lawsuits.

Source: SHRM

FMLA regulations: You can’t make disability payees use up paid time off during FMLA leave

One company’s challenge to the DOL’s FMLA regulations falls short in court

Employees who are receiving disability benefits while on FMLA leave can’t be forced to use up their paid time off as part of the leave.

That reminder of the often-confusing FMLA regulations comes to us courtesy of a federal appeals court in a recent Wisconsin case.

The employer in the case argued both that it didn’t violate DOL’s FMLA regulations covering this issue, and that the regulation itself was off-base.

The outcome of the latter argument, had the court resolved it, would have been a very interesting one for employers.

Unfortunately, the court used a procedural technicality to opt out of ruling whether the regulation went against the Congressional intent of the FMLA.

What the court did rule is that under the FMLA regulations as they stand, the employer was in the wrong.

What the FMLA regulations say

Here’s the point: As you know, you’re not obliged to pay people on FMLA leave. And if you want, you can require that they use up their paid leave – such as accrued vacation or sick time – while they’re on FMLA. (The employee can also choose to do this.)

When the employee is drawing disability benefits, however – from a plan sponsored by you or a third party like a union, or from workers comp – you can’t make them use up their accrued time off. That’s the effect of the DOL regulation, which as of today still stands.

Cite: Repa v. Roadway Express, No. 06-2360, 7th Cir., 2/26/07.

FMLA regulations update: Cafeteria plan continues during leave

Heads up: FMLA’s regulations require employers to maintain coverage of any group health plan during leave, as if the employee is still working. And that includes cafeteria plans or similar flex spending accounts.

The contributions must be in the same amount as before leave and can’t be recovered when they return.

That’s according to a recent decision by the U.S. Department of Labor.

A city’s employees disagreed with a city policy that any unpaid leave, including FMLA leave, had to be repaid upon return to work. They felt that a portion of their cafeteria plan should go toward the continuing coverage of their health benefits during FMLA leave.

So they looked to the U.S. Department of Labor to settle the squabble. The feds agreed the city’s policy was a no go.

Cite: U.S. Department of Labor, FMLA2006-3-A, 1/31/06.

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