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The Family and Medical Leave Act
Overview
Updated Regulations
State Laws
More Resources
Government Forms & Information
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Overview
The Family and Medical Leave Act (FMLA) became law in 1993. The Act was amended by the National Defense Authorization Act in 2008 to expand coverage for employees to take up to 26 weeks of leave to care for certain persons on active military duty.
FMLA generally provides that eligible employees of employers subject to the FMLA may take up to a total of 12 weeks of unpaid leave during a 12-month period for:
- The birth of a child
- The placement of a child for adoption or foster care
- The care of a newborn or newly-placed child
- The care of a spouse, parent or child with a serious health condition
- An inability to work due to the employee’s own serious health conditions
The leave may be taken all at once, or in certain instances, intermittently or on a reduced leave schedule. Subject employers must maintain preexisting health coverage for the employee while the employee is on leave and reinstate the employee to the same or an equivalent job with equivalent employment benefits, pay, and other terms and conditions of employment at the end of the leave.
The FMLA generally applies to:
- Private sector employers with 50 or more employees and certain Federal employers
- Employees who have worked for their employer for at least 12 months and have at least 1,250 hours of service in the 12 months immediately before the leave
Employee complaints alleging violations of the FMLA may be filed with Department of Labor (DOL) or as a private action in Federal or State court. Employees whose rights are found to have been violated, may be granted damages (including liquidated damages), equitable relief, and costs.
Updated Regulations
Shortly after the law came into effect, the U.S. Department of Labor (DOL) issued regulations. After several court decisions invalidating provisions of those regulations, fifteen years of experience, and an extensive rulemaking process, these regulations were recently revised by DOL’s Wage and Hour Division (WHD). A new Final Rule went into effect on January 16, 2009. Among other things, the new regulations provide:
- A requirement that employer handbooks must include information as contained in WH1420
- A requirement that employers must provide three types of notice when they become aware that an employee is requesting FMLA leave, notice of: (a) eligibility; (b) rights and responsibilities; and (c) designation
- A provision for employers to request additional information to confirm an employee or family member’s serious health condition, and also to contact health care providers if authorized by the employee
- Guidance for calculating intermittent or reduced schedule leave
- Clarifications of the definition of a “serious health condition,” including definitions clarifying “continuing treatment,” “incapacity and treatment,” “treatments,” and “chronic health condition”
- A provision for employers to require employees to comply with other leave policies when using FMLA leave
- Standards for considering FMLA leave when determining bonuses
- Limitations on the use of “light duty” in lieu of FMLA leave
- FMLA leave for verifiable “qualified exigencies,” involving family members including short notice deployments, R&R, and other events related to military duty
- FMLA leave of up to 26 weeks for care of an injured “next of kin” service member
State Laws
Similar statutes are found in 11 states, including California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin and the District of Columbia. These may affect employee rights and complicate employer duties and obligations in those states.
More Resources
- Practical Tips for Compliance with the New FMLA Regulations - Webcast (February 2009)
- The FMLA After 14 Years - Managing Family and Medical Leaves of Absence: Statutory Entitlements, Employer Commitments, and Reasonable Accommodations - Webcast Transcript (August 2007)
- Managing Family and Medical Leaves of Absence: Statutory Entitlements, Employer Commitments, and Reasonable Accommodations - Infopak (June 2007)
- Do My Employees Have to Come to Work? - Program Material (February 2007)
Government Forms & Information
- Fact Sheet on Final Rule on Family Medical Leave Act (DOL)
- Fact Sheet on the Family and Medical Leave Act of 1993 (DOL)
- Fact Sheet on the Family and Medical Leave Act Military Family Leave Entitlements (DOL)
- Final FMLA Rule (Effective 1/19/09)
- WH-380-E FMLA Certification of Health Care Provider for Employee’s Serious Health Condition
- WH-380-F FMLA Certification of Health Care Provider for Family Member’s Serious Health Condition
- WH-381 FMLA Notice of Eligibility and Rights & Responsibilities
- WH-382 FMLA Designation Notice
- WH-384 Certification of Qualifying Exigency For Military Family Leave
- WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave
- WHD 1420 Employee Rights and Responsibilities under the FMLA (English)
- WHD 1420 Employees Rights and Responsibilities under the FMLA (Spanish)
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| The information in this QuickCounsel should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or the ACC. This QuickCounsel is not intended as a definitive statement on the subject addressed. Rather, it is intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. |
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