FMLA & the EMS Provider


Most companies are familiar with the basics of the Family Medical Leave Act (FMLA). This law is triggered when a company has 50 or more employees and requires employers to provide certain eligible employees with up to 12 weeks leave in a 12-month period for an employee’s own serious health condition or to care for a family member with a serious health condition. Under the act, employees who take FMLA leave must be reinstated to the same or a comparable position when the leave ends. While these concepts seem simple enough at first blush, actually implementing and following these rules can be tricky, particularly in the context of an EMS provider. Below is a list of issues that may arise for EMS providers subject to the FMLA.


1. What Is An Equivalent Position?


For the typical EMS provider, employees are crucial; staffing is a necessity and being down an employee is not a sustainable situation. Thus, EMS providers are sometimes forced to fill an employee’s position while that employee is on leave. Another typical scenario that might occur while an employee is out is that the employee’s previous shift or route is changed or eliminated altogether. If this type of change takes place while an employee is on FMLA leave, employers are faced with the obligation to put the employee in an “equivalent” position upon his or her return to work. It is thus important to understand the meaning of the word “equivalent” under FMLA.


Employers often understandably make the mistake of assuming that as long as an employee’s pay and benefits are the same, the employer has met this standard. This is not the case. FMLA regulations require not only the same pay and benefits, but the employee must also be put in a position with substantially equivalent skill, effort, responsibility and authority. This means that if the identical position, shift, schedule and other specifics are no longer available upon an employee’s return from leave, the employer must put the employee in a position as similar as possible. For example, to the extent possible, have the employee report to the same worksite, under the same supervisor, with the same amount of autonomy and authority as previously held. Likewise, if possible the employee should work the same schedule, have the same bonus opportunities, have the same amount of overtime and have the same opportunities for advancement.


2. What Is a Reduction in Force?


An employee on FMLA leave has no greater right to employment than he or she would have had if no leave been taken. This means that if there is a reduction in force while the employee is on leave and the employee would have been laid off if actively employed, the employer need not return the employee to work. However, the Department of Labor and some courts take position that the employer has the burden of proof on this issue. Thus, it may be up to the employer to show that the elimination of the position was unrelated to the leave.


This is a fairly simple task in the case of a mass layoff affecting many employees, for example, if all employees in the same job category or working the same shift are let go. However, this burden can be difficult to meet when only a few employees are laid off–one of whom happens to be an employee on FMLA leave.


3. FMLA Leave Expires & the Employee Is Still Not Able to Return to Work, What Now?


The end of FMLA leave is not necessarily the end of the story. When an employee has exhausted the time allotted by FMLA leave and is still unable to return to work, that person’s job is no longer protected. Nonetheless, providing additional leave could be considered a reasonable accommodation under the Americans with Disabilities Act (ADA) and similar state laws. Given this interplay, rather than automatically terminating an employee if he or she cannot return once FMLA leave has expired, employers should always engage in an interactive process with the employee and explore whether the employee suffers from a disability that might warrant additional leave time as an accommodation.


4. What Is a Key Employee?


There is a little known exception to FMLA’s general guarantee of reinstatement. An employer may deny reinstatement (but may not deny leave) to a “key” employee if restoration would cause substantial and grievous economic injury. A key employee is defined in the act as “a salaried FMLAeligible employee who is among the highest-paid 10% of all the employees employed by the employer within 75 miles of the employee’s worksite.” In order to rely on the key employee exception, the employer must notify the employee in writing of his or her status as a key employee (as defined by FMLA) along with the reasons for denying job restoration, and provide the employee a reasonable opportunity to return to work after so notifying the employee.


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