The Family and Medical Leave Act (“FMLA”) provides certain employees with up to 12 workweeks of unpaid, job-protected leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. This Compliance Guide summarizes the FMLA provisions and regulations, and provides answers to the most frequently asked questions. More detail on the FMLA may be found in the regulations (29 CFR Part 825).
The FMLA became effective August 5, 1993, for most employers and employees. (For those covered by a collective bargaining agreement (CBA) in effect on that date, the FMLA became effective on the expiration of the CBA or February 5, 1994, whichever was earlier.)
This law covers only certain employers; affects only those employees eligible for the protections of the law; involves entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; sets requirements for notice and certification of the need for FMLA leave; and protects employees who request or take FMLA leave. The law also includes certain employer recordkeeping requirements.
Purposes of the FMLA
Employer Coverage, Employee Eligibility, Leave Entitlement, Intermittent/Reduced Schedule Leave, Substitution of Paid Leave, Serious Health Condition, Medical Certification, Health Care Provider, Maintenance of Health Benefits, Other Benefits, Job Restoration, Key Employee Exception
The FMLA allows employees to balance their work and family life by taking reasonable unpaid leave for certain family and medical reasons. The FMLA seeks to accomplish these purposes in a manner that accommodates the legitimate interests of employers, and minimizes the potential for employment discrimination on the basis of gender, while promoting equal employment opportunity for men and women.
FMLA applies to all:
public agencies, including State, local and Federal employers, and local education agencies (schools); and,
private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.
For FMLA purposes, most Federal and Congressional employees are under the jurisdiction of the U.S. Office of Personnel Management (OPM) or the Congress.
To be eligible for FMLA leave, an employee must work for a covered employer and:
have worked for that employer for at least 12 months; and
have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and,
work at a location where at least 50 employees are employed at the location or within 75 miles of the location.
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave in a 12 month period for one or more of the following reasons:
for the birth of a son or daughter, and to care for the newborn child;
for the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
to care for an immediate family member (spouse, child, or parent — but not a parent “in-law”) with a serious health condition; and
when the employee is unable to work because of a serious health condition.
Leave to care for a newborn child or for a newly placed child must conclude within 12 months after the birth or placement. (See CFR Section 825.201)
Spouses employed by the same employer may be limited to a combined total of 12 workweeks of family leave for the following reasons:
birth and care of a child;
for the placement of a child for adoption or foster care, and to care for the newly placed child; and,
to care for an employee’s parent who has a serious health condition.
Intermittent/Reduced Schedule Leave
The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances. CFR Section 203)
Intermittent/reduced schedule leave may be taken when medically necessary to care for a seriously ill family member, or because of the employee’s serious health condition.
Intermittent/reduced schedule leave may be taken to care for a newborn or newly placed adopted or foster care child only with the employer’s approval.
Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. Employees may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave. Employers may account for FMLA leave in the shortest period of time that their payroll systems use, provided it is one hour or less. (See CFR Section 825-205)
Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer’s operations, subject to the approval of the employee’s health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee’s regular job.
Many employers think that an employee must “ask” for FMLA. In fact, it is the employers responsibility to communicate to employees who may qualify for FMLA leave, whether they ask or not and administer FMLA in such a manner that is compliant with all aspects of the law.