Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) was signed into law in 1993 in response to a growing national concern about balancing work and family responsibilities. It was created to protect workers from losing their jobs when they need time off to address critical personal and family matters. In 2008 and in 2010, the FMLA was amended by the National Defense Authorization Act (NDAA), which expanded the reach of the FMLA by granting leave leave benefits for employees with family in the military. In January 2009 and again in February 2013, new FMLA regulations issued by the U.S. Department of Labor (DOL) became effective, changing the way in which employers must act to comply with the legal requirements of the FMLA. These new regulations also addressed NDAA’s addition of military family leave.
The FMLA is one of the most complicated employment laws for employers to administer. In addition to the federal law, there are federal regulations that do more to construct the maze than to clear it. Pair that with state family and medical leave laws, workers’ compensation laws, the federal Americans with Disabilities Act (ADA), and a company’s own employee leave policy, and employers may feel as though they are stuck in a legal labyrinth with no relief in sight.
The FMLA applies to any employer in the private sector with at least 50 employees for each working day during at least 20 workweeks in the current or the preceding calendar year within 75 miles of a work site. Joint employers and some employers with common management or ownership also may be covered by FMLA. The law covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). Those employers don’t need to meet the 50-employee test.
FMLA leave – What is it and what is covered?
The FMLA allows eligible employees of covered employers to take up to 12 weeks (including intermittent leave) of unpaid, job-protected leave in a 12 month period annually for certain family and medical reasons, including
- the birth or adoption of a child,
- caring for a seriously ill child, spouse, or parent, or
- the employee’s own serious health condition.
Amendments to the FMLA also grant additional leave to eligible employees who have covered family members in the military, reserves, or covered military veterans. These two categories of FMLA leave include:
- Qualifying exigency family leave — employees who have a spouse, parent, or child is a military member on covered active duty, or has been called to covered active duty status (or has been notified of an impending call or order to covered active duty) may take up to 12 weeks of FMLA leave yearly when they experience a “qualifying exigency,” as defined in the revised FMLA regulations; and
- Military caregiver family leave — employees who are the spouse, parent, child, or next of kin of a servicemember who suffered a serious injury or illness incurred in the line of duty on active duty in the armed forces, or that existed before the beginning of the member’s active duty and was aggravated by, or that manifested itself before or after the member became a veteran may take up to 26 weeks of leave to care for the servicemember in a single12-month period (in combination with regular FMLA leave).
Which employees are eligible for FMLA leave?
To be eligible for FMLA leave, an employee must:
- Have worked for the employer for at least 12 months at the time the leave is to commence (these 12 months do not have to be consecutive months);
- Have worked for the employer for at least 1,250 hours during the 12-month period before the leave begins (these months are consecutive); and
- Work at a worksite that employs at least 50 employees at or within a 75-mile radius of that worksite.
Employers are prohibited from: interfering with a worker exercising his rights under the Act; taking any adverse action against an employee who tries to exercise his rights; or retaliating because an employee files a complaint, gives information, or testifies in relation to a complaint.
What is a serious health condition?
One key concept under FMLA is the serious health condition.
The definition of a “serious health condition” includes:
- An illness, injury, impairment, or physical or mental condition that involves either inpatient care (i.e., an overnight stay in a hospital, hospice, or residential care facility); or
- “Continuing treatment” by a healthcare provider, as defined by FMLA regulations.
Notification requirements under the FMLA
There are very specific notice requirements for employees wishing to take FMLA leave as well as for employers in informing employees of their FMLA rights and in responding to their requests for leave. An underlying principle is that employees must give their employers as much notice of the need to take leave as is possible and practicable, considering all the facts and circumstances. More notice is required if the leave is more foreseeable (for childbirth or elective surgery, for example). Employees generally must follow their employer’s usual and customary procedures for reporting absences and leaves, and if they want to substitute paid leave for unpaid FMLA leave, they must follow procedures for obtaining the paid leave.
If employers don’t give proper notice, they may be held liable for interfering with an employee’s FMLA rights or for other reasons, and they may have to compensate the employee.
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Medical certification and record keeping
Employers may require medical certification of serious health conditions for family and medical leave under the FMLA, authenticate and clarify certifications, and ensure that the employee has furnished a complete certification. Medical certification of the need for military caregiver leave is also permitted under the law. Provided they have given employees proper notice and specific information, employers also may require employees to provide fitness-for-duty certifications before returning to work from leaves, including intermittent leave. There are limits on how often the employer may request this information.
Employers must keep accurate records pertaining to the leave and either physically or electronically post a notice of employees’ rights under the FMLA so that the information is accessible to both employees and job applicants. Furthermore, the FMLA requires employers to maintain the employee’s group health benefits while on leave on the same terms that it provided them when the employee was working.
Leave taken under the FMLA is job-protected, which means that employees must be given the same job or an equivalent job when they return. Employees or the DOL can sue the employer for lost wages, benefits, reinstatement, attorneys’ fees, and liquidated damages for willful violations.
This is a very general overview, highlighting some of the major FMLA provisions. More may apply to an organization’s particular situation, so employers consult with experienced employment counsel if they have questions. Many states also have employment laws regarding family and medical leave that may give employees greater rights than those granted in the FMLA, so employers should be mindful of their duties under state law.
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