The Family and Medical Leave Act – commonly called FMLA – was signed into law by President Clinton in 1993. The core provision of the legislation provides for 12 weeks of leave for employees with serious medical conditions or who need to care for family members. The employee cannot lose his or her job because of the leave from work. The employer is not required to give paid leave, but any health benefits must be continued for the employee.
Congress has made changes to the provisions over the years – tightening, clarifying, and sometimes expanding eligibility standards – but the basics have remained the same. The last major changes to the regulations were issued in 2008.
Under FMLA, an eligible employee at a covered employer who experiences a qualifying event is entitled to
- 12 weeks of leave (26 weeks for military caregiver leave).
- Maintenance of health benefits under the same terms as if the employee were working.
- Restoration to the same or equivalent position. This provision is subject to the Key Employee exception.
A “key employee” is one whose earnings are in the top 10% of all employees at the relevant worksite. An employer is not required to restore a key employee to the same or equivalent job if they can demonstrate “substantial and grievous economic injury” by doing so. To take advantage of the provision, the employer must notify the employee of the key employee designation and the reasons for not reinstating the employee and also give him/her a reasonable opportunity to return to work.
There are two parts to determining eligibility for FMLA leave: employer size and employee status.
The employee must work for a covered employer. A covered employer is one with at least 50 total employees working at one or multiple locations within a 75 mile radius.
When counting then number of employees, remote workers such as salespeople and telecommuters are counted with the worksite to which they report or from which they take direction.
An employee must meet service and hours of work standards – as well as work for a covered employer – to be eligible for FMLA.
- The individual must have been employed by the employer for at least 12 months prior to the leave. The months of service don’t have to be consecutive, but the employer doesn’t have to count any time worked before a break in service of seven or more years. The only exception is if the break in service is because of military service.
- The employee must have worked at least 1,250 hours in the 12 months before the start of the FMLA leave. The burden is on the employer to show through accurate records that an employee did not work enough hours.
Even though an employee does not have to specifically request FMLA leave, the employer does have the right to ask for enough information about the employee’s situation to figure out whether or not FMLA applies.
The employee is also expected to give his or her employer at least 30 days notice for foreseeable events based on the expected date of that event. Examples include the birth or adoption of a child or a medical procedure that is generally planned ahead of time such as a knee replacement.
If something changes about the situation – perhaps a baby is born early – the employee or a representative must notify the employer as soon as possible.
Failure to give at least 30 days notice for foreseeable events means the employer potentially has the right to delay the FMLA coverage for the leave.
When a leave is triggered by an emergency, the employee or a representative must notify the employer within the same guidelines normally applied for calling in sick.
The counterpoint to the employee’s obligation to notify the employer of leave situations is the requirement that employers notify employees in some way about the FMLA rules. The Department of Labor makes a poster available for employers that meets the posting requirement.
Eligible Events and “Serious Medical Condition”
FMLA leave has been available for several core reasons since it was first passed:
- Complications or incapacity related to pregnancy and/or child birth.
- Caring for a newborn child or newly placed adopted or foster child. Available for both parents. Might be referred to as maternity or paternity leave by some employers.
- Caring for the employee’s spouse, child (biological, adopted, foster, step, legal ward), or parent who is suffering a serious medical condition.
- The employee’s own serious medical condition.
The 2008 changes to the FMLA law included a new category known as military family leave. There are two basic types:
- Qualifying exigency leave
- Military caregiver leave
Qualifying Exigency Leave
Military Caregiver Leave
Ways To Take FMLA Leave
There are several ways to divvy up the available FMLA time:
- Continuous Leave.
For example, taking the full 12- or 26-week benefit in one uninterrupted span, assuming the circumstances support the need for the full span.
- Reduced Leave.
With this approach, the employee’s work schedule is temporarily reduced. This reduction can take the form of fewer hours per day, fewer days per week, or some combination.
- Intermittent Leave.
In this scenario, the employee takes leave in smaller, multiple chunks. All absences must be for the same illness or injury. The employee has an obligation to try and minimize disruption to the operation of the business when scheduling. The employer has the option of putting the employee in a different position that better suits the employee’s situation. The new position must provide equivalent pay and benefits.
Regardless of how employee takes FMLA leave, careful record keeping is essential to make sure both the employer and employee understand how much has been used for a particular qualifying event and how much has been used within any given 12-month window.