The Family and Medical Leave Act (FMLA) provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period to eligible, covered employees for the following reasons: 1) birth and care of the eligible employee's child, or the placement of a child for adoption or foster care with the employee; 2) care of an immediate family member (spouse, child, parent) who has a serious health condition; 3) care of the employee's own serious health condition; or 4) a "qualifying exigency" arising out of military service. In addition, the FMLA provides up to 26 weeks of job-protected, unpaid leave for the care of qualifying military servicemembers. The FMLA also requires that employee's group health benefits be maintained during any qualifying leave. The FMLA is administered by the Employment Standards Administration's Wage and Hour Division within the U.S. Department of Labor
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 certain military situations, including leave for employees to care for injured military servicemembers and for leave related to qualifying exigencies arising out of military service.
The FMLA generally applies to:
- All public agencies, including state, local and federal employers; Local education agencies;
- Private sector employers with 50 or more employees during 20 or more workweeks in the current or preceding calendar year;
- 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; and
- Employees who work within the United States or in any territory or possession of the United States where at least 50 employees are employed within 75 miles.
FMLA generally provides that eligible employees (29 C.F.R. §825.110) of employers subject to the FMLA (29 C.F.R. §825.104)may take up to a total of 12 weeks of unpaid leave during a 12-month period for:
- The birth of a child (29 C.F.R. §825.120);
- The placement of a child for adoption or foster care(29 C.F.R. §825.121);
- The care of a newborn or newly-placed child(29 C.F.R. §825.121);
- The care of a spouse, parent or child with a serious health condition(29 C.F.R. §825.124);
- An inability to work due to the employee's own serious health conditions(29 C.F.R. §825.113);
- For qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation. (29 C.F.R. §825.127) These activities include:
- Issues arising from a covered military member's short notice of deployment;
- Military events and related activities;
- Certain childcare and related activities arising from the active duty or call to active duty status of a covered military member;
- Making or updating financial and legal arrangements to address a covered military member's absence;
- Attending counseling for which the need arises from the active duty status of the covered military member;
- Taking up to 5 days of leave to spend time with a covered military member who is on short-term temporary, rest and recuperation leave during deployment;
- Post-deployment activities; and,
- Other events arising out of the covered military member's absence that are agreed upon between the employer and employee.
The leave may be taken all at once, or in most situations, 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. Employees may substitute any accrued paid personal time off to be used concurrently during the FMLA leave period. 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.
A "serious health condition" is defined as an illness, injury, impairment, or physical or mental condition that involves either:
- Inpatient Care in a hospital, hospice, or residential medical-care facility, including any period of incapacity or subsequent treatment in connection with such inpatient care; or
- Continuing treatment by a healthcare provider, which includes:
- A period of incapacity lasting more than three consecutive, full calendar 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
- Any period of incapacity related to pregnancy or for prenatal care. A visit to the health care provider is not necessary for each absence; or
- Any period of incapacity or treatment for a chronic serious health condition which continues for an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity; or
- A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective; or
- Any absences to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than three days if not treated.
(29 C.F.R. 825.114(a)(2))
It is unlawful for any employer to interfere with, restrain or deny the exercise of any right provided by the FMLA. Employee complaints alleging violations of the FMLA may be filed with Department of Labor (DOL) or as a private civil 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.
Eligible employees are entitled to 12 workweeks of leave in any 12-month period for all qualifying situations with the exception of military caregiver leave. "Any 12-month period" is defined in the regulations at 29 C.F.R. § 825.200(b), and allows an employer to elect:
- A calendar year;
- A fixed 12-month "leave year;"
- A 12-month period rolled forward from the date any employee's first FMLA leave begins; or
- A "rolling" 12-month period measured backward from the date an employee uses any FMLA leave. (29 U.S.C. § 2612(a)(1)).
From the company's perspective, the "rolling" method of calculating FMLA leave is the optimal choice. Otherwise, employees are left with the option of "stacking" FMLA leave, or taking two concurrent FMLA periods, for a potential cumulative period of 24 weeks. Under the rolling 12-month period, "each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months." (29 C.F.R. § 825.200(c))
Under the FMLA, military caregiver leave may not be calculated using the "rolling" methodology. Rather, the 26-week leave entitlement is calculated from "the first day the eligible employee takes FMLA leave to care for a covered servicemember and ends 12 months after that date, regardless of the method used by the employer to determine the employee's 12 workweeks of leave entitlement for other FMLA-qualifying reasons." (29 C.F.R. 825.127 (c)(1)) This leave entitlement is calculated on a "per servicemember, per-injury basis." In other words, if an eligible employee has more than one covered servicemember for which they are providing care or the same servicemember suffers another injury, the employee is entitled to additional leave. An eligible employee is entitled only to a combined total of 26 workweeks of leave for any FMLA-qualifying reason within that 12 months, not 26 weeks for the covered servicemember and additional FMLA leave for other qualifying reasons.
Employees, like employers, also have certain obligations under the FMLA. Significantly, employees must:
- If foreseeable, provide 30-day advance notice of the need for FMLA approved leave (29 C.F.R. §825.302);
- If leave request is unforeseeable, provide notice to the employer as soon as practicable or as the circumstances allow(29 C.F.R. §825.303);
- Comply with the employer's normal practices and procedural requirements for requesting leave(29 C.F.R. §825.302);
- Provide the employer with sufficient information and documentation to allow for a determination of whether the requested leave is covered by FMLA(29 C.F.R. §825.305);
- Upon request, reschedule FMLA appointments around business operations(29 C.F.R. §825.302).
To fully comply with the Final Rule changes effective January 16, 2009, employers must:
- Post a notice, approved by the Secretary of Labor, explaining rights and responsibilities under the FMLA (29 C.F.R. §825.300);
- Include all information listed in the approved notice in either employee handbooks or provide a copy to all new employee hires(29 C.F.R. §825.300);
- When an employee requests FMLA leave (29 C.F.R. §825.300):
- Notify the employee of his or her eligibility to take the leave;
- Inform the employee of his or her rights and responsibilities under the FMLA;
- Notify the employee that the leave has been designated as FMLA once the employer has enough information to make a determination. The U.S. Department of Labor has provided forms WH-381 and WH-382 to assist in the notification of eligibility;
- Employers may not count "light duty" assignments against the 12-week FMLA leave entitlement(29 C.F.R. §825.207).
Employers may request that employees support FMLA requests with documentation from a health care provider or, in the case of qualifying exigency leave, military orders and other documents showing the need for such leave. With the exception of leave taken to care for a military servicemember, employers may also require a second and third medical opinion and certification, at the employer's expense, of a serious health condition. When requiring additional information, the employee's direct supervisor may not authenticate or clarify the medical certification provided. Employers are also permitted to require recertification of the employee's own serious health condition or the serious health condition of a covered family member; however, employers are not permitted to request recertification in military caregiver situations. Further, employers are permitted to require, as part of a uniform policy, medical documentation that the employee is fit to return to work. The U.S. Department of Labor issued forms WH-380-E, WH-380-F, WH-384, and WH-385 for the purpose of obtaining certification for the various situations covered by the FMLA.
Under the FMLA, an eligible employee may take up to 12 weeks of unpaid leave during any 12-month period for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. The definition of "son or daughter" under the FMLA includes not only a biological, adopted or foster child, but also a "stepchild, a legal ward, or a child of a person standing in loco parentis." U.S. DOL Administrator's Interpretation No. 2010-3 (June 22, 2010)
Per 29 C.F.R. §825.701, nothing in the FMLA is intended to supersede or preempt state laws regulating family and medical leave. State enacted variations of the FMLA, 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; employers must comply with the applicable provisions of both federal and state law. Employers not in the affected states should continue to follow the guidelines of the FMLA.
To ensure that a corporation's risk to FMLA litigation is reduced, corporate counsel should:
- Ensure that every termination decision involving employees taking FMLA is carefully reviewed. FMLA provides protection against retaliation. Although this prohibition does not dispense with employee accountability, retaliation lawsuits have the potential for the most exposure under the FMLA. As a result, corporate counsel should mandate that termination decisions are carefully reviewed. (29 C.F.R. §825.220(c)); See Martin v. Brevard County Pub. Sch., 543 F.3d 1261, 1267-68 (11th Cir. 2008).
- Ensure that handbooks and policy manuals are reviewed annually to ensure that they are FMLA compliant. Recently, Congress has passed significant amendments to the FMLA and the U.S. Department of Labor has issued new interpretations and regulatory guidance. Further changes are anticipated. Therefore, corporations should make annual reviews a priority.
- Ensure that employment decisions take the Americans with Disabilities Act into account. Although the FMLA only requires 12 weeks of leave, the Americans with Disabilities Act requires that an employer provide a "reasonable accommodation" for an individual with a qualifying disability. Leave in excess of 12 weeks may be a "reasonable accommodation." (29 C.F.R. §825.702)
The FMLA attempts to place a manageable burden upon employers in allowing balancing the personal and medical needs of employees with the practical realities of any business enterprise. In so doing, it places an uneven burden on employers. While there are options to minimize FMLA abuse, there is nevertheless significant legal risk to employers. Consequently, when crafting the "leave" portion of any personnel policy, it is wise to give the FMLA consideration and deference. Major life events such as the birth of a child, the severe illness of the employee or family member, qualifying military exigency, or the injury or illness of a military servicemember may trigger FMLA leave. Both employees and employers have responsibilities and obligations required by the FMLA that are clearly spelled out by the Department of Labor. Employers may be able to challenge the validity of the request, and have several available tools to ensure that the system is not abused by employees. By following the clear directions promulgated by the Department of Labor – while nevertheless holding employees responsible for meeting their obligations – employers can minimize their exposure to liability while protecting their economic interests and also increasing employee morale during what can be difficult periods of life.