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Family & Medical Leave Act (FMLA)

February 27, 2014

The Family and Medical Leave Act of 1993 (“FMLA”) is a federal law that requires covered employers to provide their eligible employees with unpaid, job-protected leave for certain specified family and medical reasons.  The FMLA also requires that an employee’s group health benefits be maintained during the leave under the same conditions as if the employee had not taken the leave.  To be eligible for FMLA, an employee must (1) work for a covered employer; (2) be an eligible employee; (3) have a qualifying reason for the leave; and (4) meet certain notice and certification requirements.

Qualifying Reasons:  Eligible employees of covered employers may take up to 12 work weeks of leave in a 12-month period for one or more of the following qualifying reasons:

  • The birth of a son or daughter and to take care of a newborn child within a year of birth;
  • The placement of a son or daughter with the employee for adoption or foster care and to take care of the child within one year of placement;
  • To care for a spouse, son, daughter, or parent who has a serious health condition;
  • For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or,
  • For a qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on duty or call to covered active duty status.

In addition, the FMLA allows up to 26 workweeks of military caregiver leave during a single 12 month period to care for a covered servicemember with a serious injury or illness, if the eligible employee is the spouse, son, daughter, parent, or next of kin of the servicemember.

Covered Employers:  Covered employers include all public agencies and certain private sector employers.  Private sector employers are covered employers if they employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year.  Depending on the circumstances, covered private employers may include joint employers, successors, and/or separate entities aggregated together as integrated employers.  Private elementary and secondary schools are covered without regard to size.  Public agencies including local, state and federal employees and employees of local education agencies (elementary and secondary schools) are covered without regard to the size of the employer.

Eligible Employees:  Employees are eligible for leave if they have worked for their employer for at least 12 months, they meet an hours of service requirement of having worked at least 1,250 hours over the 12 months preceding the leave, and they work at a location at which the employer employs 50 or more employees at the worksite or within 75 miles.  Special hours of service rules apply to airline flight crews.  While smaller public agencies are defined as covered employers, the employees of smaller public agencies must meet all eligibility requirements, including the requirement that the employer employ 50 or more employees at the worksite or within a 75 mile radius.

Notice and Certification:  Employers and employees are subject to certain notice and certification requirements. Employer requirements include posting notices explaining the FMLA’s provisions.  Upon learning that the employee is absent for FMLA qualifying reasons, employer requirements include notifying the employee of his or her FMLA rights and responsibilities and designating leave as FMLA leave.  Employee requirements include giving 30 day advance notice of need to take FMLA leave when the need for leave is foreseeable that far in advance, and if not foreseeable that far in advance, as soon as is practicable.  Generally, employees must comply with call off procedures.  The employee may be asked to certify the need for leave, for example by obtaining medical certification of the need for leave for a serious health condition.  The FMLA regulations cover how often certifications may be required, and what employers may and may not do when they question certifications.

FMLA leave is generally unpaid.  Employees may elect, or the employer may require use of accrued paid vacation, sick or family leave for some or all FMLA leave.

Employee use of FMLA leave is legally protected.  Employers may not retaliate against employees for taking FMLA leave or interfere with FMLA leave rights.  For example, an employee’s use of FMLA leave cannot be counted against the employee under a “no-fault” attendance policy.  Upon return from an FMLA leave period, the employee must be restored to his or her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

This is a partial summary of employer and employee rights and responsibilities under the FMLA.  Click the following links for more information on the FMLA, FMLA compliance assistance, and an FMLA employee guide.

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