Get Latest WorkWORLD

Family and Medical Leave Act of 1993 (FMLA)

The Federal Family and Medical Leave Act (FMLA) provides a means for employees to balance their work and family responsibilities by taking unpaid leave for certain reasons. The Act is intended to promote the stability and economic security of families as well as the nation's interest in preserving the integrity of families.

The law contains provisions on employer coverage, employee eligibility for the law's benefits, entitlement to leave, maintenance of health benefits during leave, and job restoration after leave. It also provides for notice and certification of the need for FMLA leave and protection for employees who request or take FMLA leave. The law also requires employers to keep certain records.

Who is Covered

The FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.

The law covers all public agencies (State and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the "50 employee" test. Title II of FMLA covers most Federal and certain congressional employees also covered by the law who are subject to the jurisdiction of the U.S. Office of Personnel Management or the Congress.

To be eligible for FMLA leave, an individual must (1) be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people; (2) have worked at least 12 months (which do not have to be consecutive) for the employer; and (3) have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.

Basic Provisions/Requirements

The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period for the following reasons:

·          Birth and care of the newborn child of the employee;

·          Placement for adoption or foster care of a child with the employee;

·          Care of an immediate family member (spouse, child, parent) who has a serious health condition; or

·          Care of the employee's own serious health condition.

Spouses employed by the same employer are jointly entitled to a combined total of 12 work-weeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, and to care for a parent who has a serious health condition.

Leave for birth and care, or placement for adoption or foster care must conclude within 12 months of the birth or placement.

If an employee was receiving group health benefits when leave began, an employer must maintain them at the same level and in the same manner during periods of FMLA leave as if the employee had continued to work. Usually, an employee may elect (or the employer may require) the use of any accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave.

Employees may take FMLA leave in blocks of time less than the full 12 weeks on an intermittent or reduced leave basis when medically necessary. Taking intermittent leave for the placement, adoption, or foster care of a child is subject to the employer's approval. Intermittent leave taken for the birth and care of a child is also subject to the employer's approval except for pregnancy-related leave that would be leave for a serious health condition.

When the need for leave is foreseeable, an employee must give the employer at least 30 days notice, or as much notice as is practicable. When the leave is not foreseeable, the employee must provide such notice as soon as possible.

An employer may require medical certification of a serious health condition from the employee's health care provider. An employer may also require periodic reports during the period of leave of the employee's status and intent to return to work, as well as "fitness-for-duty" certification upon return to work in appropriate situations.

An employee who returns from FMLA leave is entitled to be restored to the same or an equivalent job (defined as one with equivalent pay, benefits, responsibilities, etc.) The employee is not entitled to accrue benefits during periods of unpaid FMLA leave, but the employer must return him or her to employment with the same benefits at the same levels as existed when leave began.

Employers are required to post a notice for employees outlining the basic provisions of FMLA and are subject to a $100 civil money penalty per offense for willfully failing to post such notice. Employers are prohibited from discriminating against or interfering with employees who take FMLA leave.

Serious Health Condition

"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either:

·         any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or

·         Continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to one of the following specified reasons:

(1) A health condition (including treatment for it, or recovery from it) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:

·                             treatment two or more times by or under the supervision of a health care provider; or

·                             one treatment by a health care provider with a continuing regimen of treatment.

(2) Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence.

(3) A chronic serious health condition that continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not necessary for each absence.

(4) A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment.

(5) Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).

Health Care Provider

"Health care provider" means:

·         doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctors practice; or

·         podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice, and performing within the scope of their practice, under state law; or

·         nurse practitioners, nurse-midwives and clinical social workers authorized to practice, and performing within the scope of their practice, as defined under state law; or

·         Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or

·         Any health care provider recognized by the employer or the employer's group health plan benefits manager.

Maintenance Of Health Benefits

A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.

In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.

Job Restoration

Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy.

Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:

·             notify the employee of his/her status as a "key" employee in response to the employee's notice of intent to take FMLA leave;

·             notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;

·             offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and

·             make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.

A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.

Employee Rights

The FMLA provides that eligible employees of covered employers have a right to take up to 12 weeks of job-protected leave in any 12-month period for qualifying events without interference or restraint from their employers. The FMLA also gives employees the right to file a complaint with the DOL Wage and Hour Division, file a private lawsuit under the Act (or cause a complaint or lawsuit to be filed), and testify or cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner.

Other Provisions

Special rules apply to employees of local education agencies. Generally, these rules provide for FMLA leave to be taken in blocks of time when intermittent leave is needed or the leave is required near the end of a school term.

Salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for exemption from minimum wage and overtime under Regulations, 29 CFR Part 541, do not lose their FLSA-exempt status by using any unpaid FMLA leave. This special exception to the "salary basis" requirements for FLSA's exemption extends only to "eligible" employees' use of leave required by FMLA.

The FMLA does not affect any other Federal or State law which prohibits discrimination, nor supersede any state or local law which provides greater family or medical leave protection. Nor does it affect an employer's obligation to provide greater leave rights under a collective bargaining agreement or employment benefit plan. The FMLA also encourages employers to provide more generous leave rights.

Penalties/Sanctions

The Wage and Hour Division of the Employment Standards Administration administers FMLA. Employees and other persons may file complaints with the Employment Standards Administration (usually through the nearest office of the Wage and Hour Division). The Department of Labor may file suit to ensure compliance and recover damages if a complaint cannot be resolved administratively. Employees also have private rights of action, without involvement of the Department of Labor, to correct violations and recover damages through the courts.

Relation to State, Local and Other Federal Laws

A number of States have family leave statutes. Nothing in the FMLA supersedes a provision of State law that is more beneficial to the employee, and employers must comply with the more beneficial provision. Under some circumstances, an employee with a disability may have rights under the Americans with Disabilities Act (ADA).

Additional Information

More detailed information about the Family and Medical Leave Act (FMLA), including copies of explanatory brochures, may be obtained by contacting your local U.S. Department of Labor Wage and Hour District Office. It is listed in most telephone directories under United States Government, Labor Department. Contact information and service areas, listed by State, are available online at:
http://www.dol.gov/esa/contacts/whd/america2.htm

In addition, the Wage and Hour Division has developed the elaws Family and Medical Leave Act Advisor, which is an online resource that answers a variety of commonly asked questions about FMLA, including employee eligibility, valid reasons for leave, notification responsibilities of employers and employees, and rights and benefits of employees. It is available at:
http://www.dol.gov/elaws/fmla.htm

The complete text of the Act (Public Law 103-3) is available online at:
http://www.dol.gov/esa/regs/statutes/whd/fmla.htm

DOL regulations about the FMLA (29 CFR Part 825) are available online at:
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/toc.htm

Source

Information for this topic was drawn from the U.S. DOL website at:
http://www.dol.gov/asp/programs/guide/fmla.htm
http://www.dol.gov/esa/whd/regs/compliance/whdfs28.pdf

WorkWORLD™ Help/Information System

   Share/Save: Click the button or link at left to select your favorite bookmark service and add this page.

This is one topic from the thousands available in the WorkWORLD™ software Help/Information System.
Complete information about the software is available at: http://www.WorkWORLD.org