Pastor, Church & Law

§ 8.15

---

Key Point 8-15. The federal Family and Medical Leave Act requires employers with 50 or more employees and engaged in interstate commerce to allow employees up to 12 weeks of unpaid leave each year on account of certain medical and family needs. There is no exemption for religious organizations.

A. In General—the "Leave" Requirement

The Family and Medical Leave Act[121] 29 U.S.C. § 2601 et seq. requires every employer that is "engaged in commerce or in any industry or activity affecting commerce that employs 50 or more employees" to grant eligible employees up to 12 workweeks of unpaid leave during any 12-month period in any one or more of the following situations:

• Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
• Because of the placement of a son or daughter with the employee for adoption or foster care.
• In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
• Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

An eligible employee (entitled to up to 12 workweeks of leave) is an employee who has been employed for at least 12 months by the employer and who has at least 1,250 hours of service with that employer during the previous 12-month period (an average of 25 hours per week).

Note that only those employers "engaged in commerce or in any industry or activity affecting commerce" and that employ 50 or more employees are covered by the Act. One senator estimated that this restrictive definition has the effect of exempting 95 percent of the employers in this country from the new law, and "leaving over 60 percent of the work force unprotected."

Another important term under the Act is "serious medical condition," since leave is required (1) in order to enable an employee to care for a spouse, son, daughter, or parent if such person has a serious medical condition, or (2) if an employee has a serious health condition that makes the employee unable to perform the functions of his or her job. What is a "serious medical condition"? The Act defines the term as "an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider." Note that the terms "son" and "daughter" include a biological, adopted, or foster child, a stepchild, or a legal ward, who is under 18 years of age or who is 18 years of age or older and incapable of self-care because of a mental or physical disability.

There are a few other provisions of the Act that deserve comment:

intermittent leave

The Act specifies that employees cannot necessarily take their leave "intermittently" or on a "reduced leave" basis. For example, employees entitled to leave because of the birth or adoption (or foster care placement) of a child may not take their leave intermittently or on a reduced leave schedule unless the employee and the employer agree.

unpaid leave

Note that all the Act requires is unpaid leave. Employers are not required to pay employees during their medical or family leave.

effect on existing leave policy

If an employer already makes less than 12 weeks of paid leave available to an employee for the conditions specified in the Act, then "the additional weeks of leave necessary to attain the 12 workweeks of leave required under this Act may be provided without compensation."

employees' duties

Employees have certain duties under the Act. One such duty is the "notice" requirement. The Act specifies that in cases involving the birth or adoption of a child, "the employee shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave … except that if the date of the birth or placement requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable." Further, if medical care or treatment (for the employee or the employee's spouse, child, or parent) is foreseeable, then the employee is required to "make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate; and shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave … except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable." The Act also clarifies that an employer may require an employee on leave to report periodically to the employer on the status and intention of the employee to return to work.

certification

As an accommodation to employers, the Act contains a provision that permits employers to certify that an employee (or an employee's spouse, child, or parent) has a "serious health condition" warranting leave. The Act specifies that an employer may require that a request for leave under such circumstances "be supported by a certification issued by the health care provider of the eligible employee or of the son, daughter, spouse, or parent of the employee, as appropriate. The employee shall provide, in a timely manner, a copy of such certification to the employer." The certification is sufficient if it states

(1) the date on which the serious health condition commenced; (2) the probable duration of the condition; (3) the appropriate medical facts within the knowledge of the health care provider regarding the condition; (4) a statement that the eligible employee is needed to care for the son, daughter, spouse, or parent and an estimate of the amount of time that such employee is needed to care for the son, daughter, spouse, or parent, or a statement that the employee is unable to perform the functions of the position of the employee; and (5) in the case of certification for intermittent leave for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment.

The Act permits employers to obtain a "second opinion" concerning the medical condition of an employee or of an employee's spouse, child, or parent. It provides: "In any case in which the employer has reason to doubt the validity of the certification provided [by an employee] the employer may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer concerning any information [in the original certification]." However, an employer may not obtain a second opinion from a health care provider that is "employed on a regular basis by the employer." If a second opinion differs from the original certification, then "the employer may require, at the expense of the employer, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employer and the employee concerning the information certified [in the original certification]. The opinion of the third health care provider … shall be considered to be final and shall be binding on the employer and the employee."

The Act further specifies that an employer "may require that the eligible employee obtain subsequent recertifications on a reasonable basis."

returning to work

What happens when an employee who has been on medical or family leave returns to work? Must the employee be returned to his or her former job? This is what the Act says: "Any eligible employee who takes leave … shall be entitled, on return from such leave, to be restored by the employer to the position of employment held by the employee when the leave commenced, or to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." With regard to the accrual of seniority and fringe benefits during periods of unpaid medical or family leave, the Act provides that "the taking of leave shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced." However, nothing in the Act "shall be construed to entitle any restored employee to the accrual of any seniority or employment benefits during any period of leave, or any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave." While an employee is on leave required by the Act, the employer "shall maintain coverage under any group health plan for the duration of such leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of such leave." If the employee does not return from leave, the employer in some cases is entitled to recover the premium that the employer paid for maintaining coverage for the employee under a group health plan.

If an employee has been on leave because of his or her own medical condition, the Act specifies that "as a condition of restoration … the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this paragraph shall supersede a valid state or local law or a collective bargaining agreement that governs the return to work of such employees."

notice

The Act requires employers to "post and keep posted, in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice … setting forth excerpts from, or summaries of, the pertinent provisions of this Act." The penalty for non-compliance with the notice requirement is $100 for each separate offense.

B. Application to Churches and other Religious Organizations

There is no exemption in the Act for religious organizations. However, the Act will have minimal impact on most churches, since it applies only to employers that are "engaged in commerce or in any industry or activity affecting commerce that employ 50 or more employees." Most churches employ fewer than 50 persons, and these churches will not be affected at all by the new law. A church employing 50 or more persons can establish that it is exempt by demonstrating that it is not engaged in a business or activity "affecting commerce." Whether or not a church or other religious organization is engaged in "commerce" is a question addressed fully in section 8-09 of this chapter. There is no doubt that some religious organizations will be covered by the Act, including many denominational headquarters, publishers, religious educational institutions, and larger churches. Administrators of such institutions should review this section carefully, and consult with their own legal counsel to discuss coverage and implementation issues.

Some churches will voluntarily comply with the Act, even though they have fewer than 50 employees or are not engaged in commerce. After all, Congress has determined that a 12-week medical and family leave policy is essential to preserve the family. As one senator remarked, "to lose your job and to lose health care coverage when your child is sick or your spouse is ill or a parent you are caring for is in trouble, to lose a job and lose the health care coverage, what more cruel set of facts could strike a family? So this legislation will do an awful lot just to save and protect good people who are trying to hold body and soul and family together at a time when they need it most. … The Family and Medical Leave Act establishes a basic standard of human decency."

Churches considering voluntary compliance with the Act should keep in mind the following points:

• The medical and family leave mandated under the Act is unpaid leave. This is a noncash fringe benefit.
• The cost to an employer in granting unpaid leave can be significantly less than the cost of training a permanent replacement for an employee who needs time off due to the birth of a child or an illness in the family. Much congressional testimony was devoted to proving this point.
• Employers who voluntarily comply with the Act will realize a benefit in the form of improved employee morale. Many church employees will expect their church to provide medical and family leave, even though the church may not be subject to the Act. Church employees will expect their church to comply with a law designed to protect the family rather than hide behind the "legal technicality" that they are exempt.
• Recall that employers can require verification that an employee is eligible for the leave. This will reduce the risk that employees will abuse the medical and family leave policy.

Case studies

• A federal court in Michigan ruled that a church school did not violate the Family and Medical Leave Act, or a state employment discrimination law, when it refused to return a female employee to her former job following a 33-week leave of absence caused by pregnancy-related complications. A female employee was unable to work three months into a pregnancy. She did not return to work until 33 weeks after she began pregnancy leave. When she reported for work, the school principal informed her that she was assigned to a new position with the same salary and benefits, according to a plan he had devised to reorganize the office. The employee perceived this reassignment as a demotion, tendered a letter of resignation a few days later, and then filed a lawsuit claiming that the church violated her rights under the Family and Medical Leave Act (FMLA). Federal regulations state that "it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section." According to the regulations, an employer's failure to give an appropriate notice designating leave as FMLA-qualifying leave precludes the employer from counting any of the absences against the FMLA's 12 weeks. An employer may not designate leave as FMLA leave retroactively. In this case the church failed to notify the employee that any of her disability leave commencing on the day she left her job due to pregnancy was considered FMLA leave. She claimed that her absence from work before the church designated her leave as FMLA leave could not be counted against FMLA's 12 weeks, and since she returned to work within 12 weeks of the church's designation she enjoys the protection of the FMLA despite an actual absence that exceeded 12 weeks. The court relied on a decision by the United States Supreme Court in which the Court concluded that an employer's violation of the notice regulations does not automatically entitle an employee to additional leave beyond 12 weeks or establish a right to recovery.[122] Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). Rather, the employee must prove that she suffered prejudice by the employer's failure to properly notify her of her rights under the FMLA or that certain leave would be counted against her FMLA allotment. The court concluded that there was no evidence that the employee could have returned to work within 12 weeks of the time she began her pregnancy leave regardless of the notice the church might have given her regarding her rights and responsibilities under the FMLA. An employee "who does not return to work within the 12-week period specified by the FMLA may not claim the protection provided by the Act."[123] Thompson v. Diocese of Saginaw, 2004 WL 45519 (E.D. Mich. 2004).
• A federal district court in New York ruled that a church agency did not violate the Family and Medical Leave Act by dismissing an employee whose investment decisions resulted in a loss of $8 million in church funds.[124] Carrillo v. The National Council of the Churches of Christ in the U.S.A., 976 F. Supp. 254 (S.D.N.Y. 1997). Before dismissing the employee, the agency attempted to work out a severance agreement with the employee. While these negotiations were proceeding, the employee took medical leave. He was later dismissed when efforts to negotiate a severance agreement failed. The employee sued the agency, claiming that his dismissal violated the Family and Medical Leave Act (FMLA), which makes it unlawful for covered employers to "discharge or in any other manner discriminate" against any individual for exercising rights provided by the Act. A federal district court dismissed the lawsuit. It noted that "the FMLA provides that an employee on protected leave is not entitled to any greater rights or benefits than he would be entitled to had he not taken the leave." It further observed that it was undisputed that the church had announced its determination to terminate the director before he went on medical leave, but deferred doing so only to provide an opportunity for the parties to try to negotiate a resignation agreement. Further, the church reserved the right to terminate the director if no such agreement were negotiated. As a result, the director "was not denied any right, for none was preserved." The FMLA "does not require employers to give returning employees any assurances of job security to which they would not have been entitled, prior to taking sick leave." The court also observed that "FMLA is not a shield to protect employees from legitimate disciplinary action by their employers if their performance is lacking in some manner unrelated to their FMLA leave."