The answer depends on why they don’t return.

Under the FMLA, employers can’t recover premiums paid for health coverage if an employee fails to return to work because of their own or a family member’s serious health condition, or due to “other circumstances beyond the employee’s control.”

Those circumstances include:

• the employee’s spouse has been transferred to a job more 75 miles from your company’s location
• the employee is laid off while on leave, and
• a “key employee” is denied reinstatement by the company.

In other cases, employers can recoup the costs if employees fail to return to work. Under the law, “returning to work” means working for at least 30 days after taking leave.

So if an employee resigns or retires within 30 days of his or her return from leave, the company may be entitled to recover its share of the health benefit premiums.

That’s what two employees claimed in one recent court case.

The employer gave all full-time employees 120 hours of sick time a year. Employees who exceeded that allotment were disciplined.

Two employees had each taken close to 120 hours of sick leave — plus, they had both taken time off for FMLA. So by the end of the year, they’d used more sick time than they were allowed and were suspended without pay.

They sued, claiming they were disciplined because they took FMLA.

The company’s response: Employees had the choice of whether they wanted to use paid sick leave while they were on FMLA. In this case, the employees chose to take the paid time.

Then, when they tried to take more sick days after that, they were punished.

Who won the case?

Answer: The company.

The employees chose to use sick leave when they took FMLA and continued to use sick time when they knew they’d run out. “In other words,” the judge said, “they want more paid sick time than other [employees] got.”

The court didn’t buy their argument and the case was thrown out.

Cite: Tucker v. County of Monmouth

In one recent case, an employee missed 10 days of work because of a medical problem. When she told her boss she was going to be absent again, the boss said she may be able to take FMLA leave.

She declined, apparently because she may have needed surgery in the near future and was waiting to see how much time off she’d require at that point.

So she took the days off without completing FMLA certification. The problem: She was out of her allotted sick leave and had already been warned by her manager about excessive absenteeism. After she missed several days, she was fired.

She sued, claiming the company violated the FMLA. Her argument: The supervisor should have warned her that her job would be in jeopardy if her leave was unprotected.

But the judge didn’t buy it. The manager did the right thing: He offered FMLA when he learned she had a medical issue. The law didn’t require him to do anything more.

The employee should have understood the difference between FMLA and unprotected leave — and she’d already been warned about missing too much time.

Cite: Knox v. City of Monroe

Generally, employees on FMLA don’t need to continue earning those benefits. Benefits are accrued based on employers’ individual policies.

For example, if your company gives employees vacation time based on the hours they work, they don’t need to accrue any PTO while on medical leave (as long as other types of unpaid leave are treated the same way).

The same goes for calculating seniority. Hours on FMLA don’t need to be factored into the equation.

But there is one area to look out for: Many companies let employees earn PTO while they’re out on paid vacation. When FMLA runs concurrently with paid leave, employers should continue following that policy.

Otherwise, they could get in trouble for treating an employee using FMLA leave differently than employees who haven’t taken FMLA.

Many employers choose to have leave policies that are more generous than what the FMLA requires. But as a recent case shows, that doesn’t mean those companies are immune to lawsuits.

An employee needed two months off work after complications during surgery. His boss told him he could take paid leave for whatever time he needed.

Though the employee was eligible for FMLA, neither he nor his boss ever mentioned it as a possibility. Instead, he took time off and was paid his full salary until he was able to come back to work.

The manager told him his job would be open for him when he returned.

The problem: The supervisor couldn’t live up to his promise. Once he went back to work, the employee was put in a different position and given a pay cut.

He sued under FMLA, claiming he was unfairly denied reinstatement to his former position.

The company tried to have the case thrown out, arguing the employee had no right to reinstatement because he never took FMLA leave.

But the judge didn’t buy it. As the court ruled, most likely, the only reason he didn’t take FMLA is that his manager never offered it — and he was obligated to after he learned the reason the employee needed time off.

The company may have acted generously by giving the employee seemingly indefinite paid leave, but that didn’t mean he wasn’t entitled to the FMLA’s job protection.

Generosity’s not enough

The lesson for managers: It’s easy to think employees don’t need FMLA because the company’s offering a more generous leave policy and plans to keep the employee in the same job no matter what.

But as this case shows, those plans don’t always work out. And that makes employers an easy target for lawsuits.

Managers need to notify HR whenever they think an employee qualifies for FMLA so leave can be offered — no matter what the employer’s individual leave policy.

Cite: Smith v. Primecare Medical, Inc.

In one recent case, an employee took FMLA to give birth. Originally, she was scheduled to take six weeks of leave, but she needed surgery that required another seven weeks off — putting her over the 12 weeks she was guaranteed under the law.

She called her supervisor and told him about the extra leave she needed, and he said that was fine.

However, he never told HR about the conversation. So when 12 weeks was up and the woman didn’t show, she was fired.

She sued, claiming she wasn’t aware she was out of leave — if she knew she’d have to come back earlier to save her job, she would have.

The court agreed. Since the manager basically added to the time the employee could take under FMLA, the company couldn’t fire her when she didn’t come back after 12 weeks.

Other cases like this have had similar outcomes. That’s why it’s key for managers to know the rights and responsibilities employees have under the law — and to get HR involved whenever necessary.

Cite: Cutting v. Ferrous Processing and Trading Co.

One company’s policy required employees taking sick leave to call in every day to report an absence. After missing three days without reporting, employees were fired.

The rule applied to employees on extended medical leaves, including FMLA. The company’s handbook stated that “FMLA does not change [the company's] leave of absence procedures,” and when employees took FMLA, they were given paperwork reminding them that they still had to follow the call-in policy.

An employee was granted intermittent FMLA because of a severe allergy and took leave for several weeks. At first, she called her manager every day in accordance with the policy, but then stopped. After she failed to call for three days, the company fired her.

She sued, claiming the company couldn’t fire her while she was on FMLA and that asking her to call in infringed on her rights under the law.

But the judge didn’t buy it. Employees taking leave can be fired as long as companies can show they would’ve lost their jobs even if they weren’t on protected leave.

In this case, it wasn’t the fact that the woman took FMLA that got her fired — it was her violation of company policy. Since the policy applied to employees on all leaves of absence, the company showed it didn’t single out employees on FMLA.

Cite: Bacon v. Hennepin County Medical Center

Here’s what’s new:

• Medical certification forms, now separated for employees’ health conditions and family members’ health conditions
• A new notice of eligibility, rights and responsibilities
• A new notice for FMLA leave designation
• New forms for military leave provisions — a certification for qualifying exigency and a certification for injury or illness of a covered servicemember.

Here are some of the highlights of the changes:

• Military Family Leave – The new regs include amendments to the FMLA which give employees 26 weeks of leave a year to care for a family member injured during military service. Employees also get leave for a “qualifying exigency” related to a family member in the military — for example, short-notice deployments, military events, counseling, childcare and post-deployment activities.
• Light duty – The regs clarify that time an employee spends working “light duty” because of a serious illness is not to be tracked as FMLA leave.
• Waiver of rights – Employees can’t waive their right to sue for an FMLA violation. The courts haven’t agreed on whether that only refers to future FMLA claims, or if it also includes retroactive waivers, such as those found in severance agreements. Under the DOL’s proposal, the latter type of waiver will be allowed.
• Definition of “serious health condition” — To qualify for FMLA, an employee or family member must be incapacitated for more than three consecutive days and make at least two visits to a healthcare provider (or one visit plus continuing treatment). The proposed regs require those two visits to occur within 30 days of when the period of incapacity starts. Also, to get leave for a chronic condition, the employee or family member must make at least two doctor visits annually.
• Perfect attendance bonuses – Under the old regs, if an employee had perfect attendance other than qualified FMLA leave, the employer was required to pay him or her any applicable attendance bonus the company usual gives out. The new regs let companies withhold those bonuses — as long as employees who take FMLA aren’t treated more harshly than employees who take time off for other reasons.
• Notice from employees — According to some courts’ interpretation, the old regs let employees notify the company of the need for leave up to two days after they take off — even if they could’ve given advance notice. The new regs state that employees taking leave must follow the company’s usual process for reporting absences, if possible.
• Notice to employees – Right now, employers have to tell employees that time off will be counted as FMLA within two days of learning about the qualifying condition. Under the new regs, employers would have five days.
• Eligibility standards – Employees are eligible for leave if they’ve worked for the company for at least 12 months — even if the 12 months weren’t consecutive. The current rules don’t say how long employees can go back to add up periods of service. Under the proposed regs, employers won’t need to count any time that occurred before a break in service of more than seven years.

To read all 700 pages of the changes as they’ll appear in the Federal Register, click here for the official document.

The case involved an employee who lived with his daughter and granddaughter.

The daughter, a single mother, was both a student and a member of the Army Reserve. Given her busy schedule, the employee often took care of the child when her mother was at school or away during weekends for training.

The granddaughter became ill and needed care, and the employee asked for FMLA leave. He was turned down and sued.

The company tried to get the case thrown out, arguing that the employee wasn’t entitled to leave since the law lets employees take leave to care for their own children.

But the court let the suit proceed, saying the man acted “in loco parentis” — he performed the duties of a parent so he was entitled to leave as a parent would have been.

Who is a parent?

FMLA gives parents leave to care for their children, but how is the parent-child relationship defined? According to the law, “child” means “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

According to the court, “in loco parentis” (literally, “in place of a parent”) refers to someone who “has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.”

In this case, the employee met those requirements.

Cite: Martin v. Brevard County Public Schools