INTRODUCTION TO THE FAMILY AND MEDICAL LEAVE ACT

The Family and Medical Leave Act (FMLA) is a federal law which became effective on Aug. 5, 1993. It provides certain employees with up to twelve (12) workweeks of unpaid, job-protected leave a year and requires group health benefits be maintained during the leave. The United States Department of Labor (DOL), which is the agency which enforces the FMLA, has issued detailed regulations interpreting the FMLA. These regulations can be accessed online at www.dol.gov.

The FMLA applies to all public agencies, including state, local and federal employers, and local education agencies (schools), as well as private sector employers who employ fifty (50) or more employees for at least twenty (20) workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce.

To be eligible for FMLA benefits, an employee must (1) Work for a covered employer; (2) Have worked for the employer for at least a total of twelve (12) months; (3) Have worked at least 1,250 hours over the prior twelve (12) months; and (4) Work at a location where at least 50 employees are employed by the employer within 75 miles.

There are some exceptions to whom is deemed to be covered by the FMLA. For example, in certain circumstances, “key” employees are exempted from the FMLA. A “key” employee is a salaried “eligible” employee who is among the highest paid ten (10%) percent of employees within 75 miles of the work site.

In addition, a husband and wife who are employed by the same company are only entitled to a combined total of 12 weeks for the birth of a child, when adopting a child, or to care for a parent with a serious health condition.

Finally, 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.

WHAT THE FMLA PROVIDES

A covered employer must grant an eligible employee up to a total of twelve (12) workweeks of unpaid leave during any twelve (12) month period for one or more of the following reasons.

(1) New Child Leave

An eligible employee may take leave for the birth or placement of a child for adoption or foster care.


(2) Employee Serious Health Condition

An eligible employee may take medical leave when the employee is unable to work because of a serious health condition.

“Serious health condition” is defined as an illness, injury, impairment, or physical or mental condition that involves:

a) any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay); or

b) any period of incapacity required absence of more than three calendar days from work, school or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or

c) any period of incapacity due to pregnancy or for prenatal care; or any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or

d) a period of incapacity that is permanent or long term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or

e) any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

Ordinary illnesses do not qualify for FMLA. Some examples of what may be considered an “ordinary illness” are a common cold, flu, earaches, upset stomach, headaches, and routine dental care.

Substance abuse is covered when the employee is seeking treatment, but not when an employee is simply impaired by his/her usage.

To be eligible for FMLA an employee must have a condition that makes him or her unable to perform their essential job functions, as found by a health care provider.

(3) Family Member Serious Health Condition

An eligible employee may take leave to care for an immediate family member (spouse, child or parent) with a serious health condition.

The “need to care” for a family member encompasses both physical and psychological care.

TYPES OF LEAVES

An employee may take his/her leave all at one time, i.e. daily, weekly or monthly.

Under some circumstances, employees may take FMLA leave intermittently. That is, an eligible employee may take leave in blocks of time, or by reducing their normal weekly or daily work schedule.

FMLA leave may be taken intermittently whenever it is medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work. If the need for intermittent leave is foreseeable based on planned medical treatment, the employee is responsible for scheduling the treatment in a manner that does not unduly disrupt the employer’s operations, subject to the approval of his/her health care provider.

Where FMLA leave is for birth or placement for adoption or foster care, use of intermittent leave is subject to the employer’s approval.

An employee may drop to part-time status until the equivalent of twelve (12) weeks leave has been used.

BENEFITS CONTINUATION

The general rule when addressing benefits continuation is that the employer
must treat the employee’s health coverage or any new coverage offered during the leave period like he/she never left. As for other benefits while on unpaid FMLA leave such as life insurance, disability insurance, or other types of benefits for which the employee typically pays, the employer is required to follow established policies or practices for continuing such benefits for other instances of leave without pay. If the employer has no established policy, the employee and the employer are encouraged to agree upon arrangements before FMLA leave begins.

RESTORATION TO POSITION AFTER LEAVE

Upon return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence.

However, an employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. If this is proven, the employer's responsibility to continue FMLA leave and to maintain group health plan benefits cease at the time the employee’s employment would have ceased, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise.
FMLA ENFORCEMENT

If an employee feels that his/her employer has violated the FMLA, that employee can either (1) file a complaint with the Secretary of Labor, or (2) file a private lawsuit. In no event may a complaint be filed more than two years after the action which is alleged to be a violation of FMLA occurred, or three years in the case of a willful violation.

The relief that can be sought by an employee who believes that his/her employer has violated the FMLA includes wages, employment benefits, or other compensation denied or lost to such employee by reason of the violation. Where no wages have been lost, the employee can recover any actual monetary loss sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to twelve (12) weeks of wages for the employee. In addition, interest at the prevailing rate may be assessed. Liquidated damages in the amount of two times the amount associated with the violation may also be assessed, as well as equitable relief, such as reinstatement/promotion. Finally, reasonable attorneys’ and expert fees may also be assessed against a violating employer.