« Go Back Family and Medical Leave Act

The federal Family and Medical Leave Act (FMLA) became effective August 5, 1993.  It applies to all employers with 50 or more employees.  Among the stated purposes of the Act are to balance the demands of the workplace with needs of families and to promote the stability and economic security of families.  The relevant provisions of the Act are summarized below:

Employee Eligibility for Leave

To be eligible for FMLA leave, an individual must be employed for at least 12 months and must have worked at least 1,250 hours during the 12-month period preceding the commencement of the leave of absence.  In addition, the individual must be employed at a work site that, combined with any other work sites of the employer within 75 miles, has at least 50 employees.

Entitlement to Leave

An eligible employee is entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following reasons:

1.  Birth of the employee’s child, and to care for the newborn child;

2.  Placement with the employee of a child for adoption or foster care, and to care for the newly placed child;

3.  Care for the employee’s spouse, child, or parent with a serious health condition; and

4.  Because of a serious health condition that make the employee unable to perform one or more of the essential functions of his or her job.

A “serious health condition” refers to any illness, injury, or physical or mental condition that involves either inpatient care in a hospital or other similar facility, or continuing treatment by a healthcare provider.  The regulations promulgated by the federal Department of Labor, Wage and Hour Division, provide very detailed guidance on this term.

While most of the provisions of any company’s FMLA policy are mandated by law, employers do have some flexibility in certain areas, such as calculating the beginning of the 12-week period (e.g., calendar year, anniversary date, or a rolling period).  Employers may, but are not required to, extend the leave beyond 12 weeks.

A medical leave of absence may be taken by an employee on an intermittent (rather than on an uninterrupted) basis or on a reduced schedule if it is medically necessary for recovery from or treatment of a serious health condition, or to provide care of psychological comfort to an immediate family member with a serious health condition.  Under these circumstances, the employee may be required to temporarily transfer to an alternative position that accommodated the employee’s recurring absences or part-time schedule.  Leave on an intermittent or reduced schedule basis does not apply to leave due to the birth of a child or placement for adoption unless the employer specifically authorizes it.

Notice Requirements

When the need for leave of absence is foreseeable or anticipated, employees are required to notify their employers at least 30 days in advance of the leave.  If the need for leave is not foreseeable an employee must give as much advance notice as is practicable.  In all circumstances, employers have the right to designate any leave as FMLA leave, even if the employee does not specifically apply for is as such, as long as the condition requiring a leave is one which would qualify the employee for FMLA leave.

Medical Certifications

Employers may require employees to submit a medical certification if the reason for the leave is due to the serious health condition of the employee or family member.  The regulations restrict the type of information to which an employer is entitled to the date on which the medical condition commenced, its probable duration, and appropriate related medical facts.  An employer may require a second and /or third medical opinion at its own expense if it questions the original medical certification; periodic medical updates, and a fitness-for-duty report prior to reinstatement.

Compensation and Benefits During FMLA Leave

The 12-week period of leave usually is unpaid; nothing in the law requires employers to compensate employees for any part of the FMLA Leave.  However, employers may require employees to exhaust all accrued, unused paid time, such as vacations, personal days and/or sick time, as part of the 12-week period.  In addition, FMLA leave can run concurrently with certain “paid” leaves, such as leave pursuant to a short-term or long-term disability policy or leave for which worker’s compensation benefits are received by the employee.

The FMLA requires employers to maintain health insurance benefits for employees on FMLA leave under the terms in existence prior to the leave.  If an employee fails to return to work at the end of the leave due to the reasons other than a continuation of the serious health condition, the employer can collect from the employee any premiums it paid on the employee’s behalf for the 12 weeks.

Job Protections Under the FMLA

Employees who take FMLA leave are entitled to be restored to the same or equivalent position held when the leave commenced.  The job restoration provisions apply to employees other than certain “key” employees, that is, highly compensated employees, provided the employer follows strict notice requirements regarding the latter group of employees.

Taking an FMLA leave cannot result in the loss of any employment benefit which accrued prior to the date on which the leave commenced.  However, employees are generally not entitled to accrue seniority or employment benefits (other than health insurance) during the leave.
Prohibited Act/Enforcement

The Act prohibits employers from interfering with or denying rights under the law.  Aggrieved individuals may file a complaint with the Secretary of Labor or proceed directly to court; any such actions must be taken within two years of the alleged violation.

Any employer who denies leave or violates the law in any other manner may be liable for damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to employee by reason of the violation, or any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee.  Liquidated damages, recovery of attorney’s fees, and other types of equitable relief are also available.

Highlights

The following information pertains to some of the highlights of the act :