EMPLOYER RESOURCES: FAMILY & MEDICAL LEAVE ACT
The U.S. Department of Labor's Employment
Standards Administration, Wage and Hour Division, administers and enforces the
Family and Medical Leave Act (FMLA) for all private, state and local government
employees, and some federal employees. Most Federal and certain congressional
employees are also covered by the law and are subject to the jurisdiction of the
U.S. Office of Personnel Management or the Congress.
FMLA became effective on August 5, 1993, for most employers. If a collective
bargaining agreement (CBA) was in effect on that date, FMLA became effective on
the expiration date of the CBA or February 5, 1994, whichever was earlier. FMLA
entitles eligible employees to take up to 12 weeks of unpaid, job-protected
leave in a 12-month period for specified family and medical reasons. The
employer may elect to use the calendar year, a fixed 12-month leave or fiscal
year, or a 12-month period prior to or after the commencement of leave as the
12-month period.
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; 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.
EMPLOYER COVERAGE
FMLA applies to all:
- public agencies, including state, local and
federal employers, local education agencies (schools), and
- private-sector employers who employed 50 or
more employees in 20 or more workweeks in the current or preceding calendar
year and who are engaged in commerce or in any industry or activity
affecting commerce — including joint employers and successors of covered
employers.
EMPLOYEE ELIGIBILITY
To be eligible for FMLA benefits, an employee
must:
- work for a covered employer;
- have worked for the employer for a total of 12
months;
- have worked at least 1,250 hours over the
previous 12 months; and
- work at a location in the United States or in
any territory or possession of the United States where at least 50 employees
are employed by the employer within 75 miles.
LEAVE ENTITLEMENT
A covered employer must grant an eligible
employee up to a total of 12 workweeks of unpaid leave during any 12-month
period for one or more of the following reasons:
- for the birth and care of the newborn child of
the employee;
- for placement with the employee of a son or
daughter for adoption or foster care;
- to care for an immediate family member
(spouse, child, or parent) with a serious health condition; or
- to take medical leave when the employee is
unable to work because of a 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.
Under some circumstances, employees may take FMLA leave intermittently — which
means taking leave in blocks of time, or by reducing their normal weekly or
daily work schedule.
- If FMLA leave is for birth and care or
placement for adoption or foster care, use of intermittent leave is subject
to the employer's approval.
- FMLA leave may be taken intermittently
whenever medically necessary to care for a seriously ill family member, or
because the employee is seriously ill and unable to work.
Also, subject to certain conditions, employees or
employers may choose to use accrued paid leave (such as sick or vacation leave)
to cover some or all of the FMLA leave.
The employer is responsible for designating if an
employee's use of paid leave counts as FMLA leave, based on information from the
employee.
"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:
- A health condition (including treatment therefore,
or recovery there from) 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; or
- Pregnancy or prenatal care. A visit to the
health care provider is not necessary for each absence; or
- A chronic serious health condition which
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; or
- 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; or
- 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" 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.
NOTICE AND CERTIFICATION
Employees seeking to use FMLA leave are required
to provide 30-day advance notice of the need to take FMLA leave when the need is
foreseeable and such notice is practicable.
Employers may also require employees to provide:
- medical certification supporting the need for
leave due to a serious health condition affecting the employee or an
immediate family member;
- second or third medical opinions (at the
employer's expense) and periodic recertification; and
- periodic reports during FMLA leave regarding
the employee's status and intent to return to work.
When intermittent leave is needed to care for an
immediate family member or the employee's own illness, and is for planned
medical treatment, the employee must try to schedule treatment so as not to
unduly disrupt the employer's operation.
Covered employers must post a notice approved by
the Secretary of Labor explaining rights and responsibilities under FMLA. An
employer that willfully violates this posting requirement may be subject to a
fine of up to $100 for each separate offense.
Also, covered employers must inform employees of
their rights and responsibilities under FMLA, including giving specific written
information on what is required of the employee and what might happen in certain
circumstances, such as if the employee fails to return to work after FMLA leave.
UNLAWFUL ACTS
It is unlawful for any employer to interfere with, restrain, or deny the
exercise of any right provided by FMLA. It is also unlawful for an employer to
discharge or discriminate against any individual for opposing any practice, or
because of involvement in any proceeding, related to FMLA.
ENFORCEMENT
The Wage and Hour Division investigates complaints. If violations cannot be
satisfactorily resolved, the U.S. Department of Labor may bring action in court
to compel compliance. Individuals may also bring a private civil action against
an employer for violations.
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.
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