FMLA Needs in the Restaurant Business

In 1993, the government provided minimum leave criteria for employees, under an act known as the Family and Medical Leave Act. Public and private employers who employ 50 or more workers, either within a single workplace or over several settings within a 75 mile radius, are covered under this act. The restaurant industry is an example of one which must comply with the FMLA if they meet these criteria. Under this act, it is unlawful for employers to interfere or refuse an employee to take family and medical leave if they are eligible. Similarly, it is unlawful for an employer to discharge an employee, or to undertake other discriminatory practices based on the employees choice to utilize family and medical leave.

Under the FMLA, employees are eligible to take up to 12 weeks of unpaid, job-protected leave for a variety of health and caregiving reasons. These include health conditions of the employee, their partner, children and parents. Definitions within the Family and Medical Leave Act may vary by state and even industry. Typically a serious health condition is one in which illness, injury or impairment requires an overnight stay in a hospital, one which is chronic or affects the employee’s ability to carry out work responsibilities. The act also covers pre-natal medical care, including care for a child through adoption or fostering. Leave does not need to be taken in one block but may be taken intermittently within the 12 month period. Employees may also use paid leave in addition to unpaid medical and family leave, in which case paid leave is applied first.

There are special considerations for employees who are part of a military family, including variation in eligible reasons for leave, definitions within the act, and length of leave permitted. For example, employees may be eligible for up to 26 weeks to care for spouse, child, parent or next of kin, as long as they are a covered service member who has a medical health issue or injury, which was incurred whilst on active duty and in the line of duty.

There are certain pre-requisites for employees to be considered eligible under the FMLA. They must have worked for the covered employer for 12 months or have 1,250 hours of service during the 12 months prior to the request. Employers have a responsibility to inform the employee of eligibility or reasons or non-eligibility. Where possible, employees are required to give as much advanced notice as possible to avoid undue disruption to the employers. They must also continue to follow the workplace rules and regulations regarding notification of leave.

Under HIPPA and protection of employee privacy, HR or leave professionals may contact the employee’s health care provider, rather than their immediate supervisor or employer. Similarly, employees are not required to provide a diagnosis for certification. Upon a return to work, workers may be required to certify a ‘fitness for duty’ to assure the employer that the worker is fit to continue work. Employees are guaranteed to return to the same work role or one which is similar.

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