EMPLOYMENT - Family and Medical
Leave Act
WHAT YOU NEED TO KNOW? BE
SMART - UNDERSTAND THE LAW
By: Stuart H. Grozbean
Family and Medical
Leave Act of 1993
(29
USC §2601 et seq.;
29 CFR 825)
Who is Covered?
The 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.
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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 employees, who are subject to
regulations issued by the Office of Personnel Management.
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
employee's child, or 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.
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.
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 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.
Compliance Assistance
Available
ESA's Wage and Hour Division
administers FMLA. More detailed information, including
copies of explanatory brochures, may be obtained by contacting
the local
Wage
and Hour offices. In addition, the Wage and Hour
Division has developed the 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.
Compliance assistance information is also available from the
Wage and Hour Division's website.
Penalties/Sanctions
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.
The above is excerpts from the
Federal Statute.
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