Family and Medical Leave Act (FMLA)

The federal Family and Medical Leave Act (FMLA) became effective on August 5, 1993.  The FMLA was amended in 2008 to include new military family leave entitlements. It is administered by the U. S. Department of Labor (DOL), Wage and Hour Division. The DOL enacted final regulations implementing the FMLA in 1995, and extensively revised the regulations effective January 2009.

The FMLA requires employers to allow eligible employees to take a certain minimum amount of job-protected unpaid leave, or to substitute appropriate paid leave if the employee has earned or accrued it, for specified family and medical reasons.

All counties and cities are covered by the FMLA, regardless of the number of employees.  A county or a city is generally considered to be a single employer.

Both male and female employees who have worked at least 12 months for the employer, and who have worked at least 1,250 hours during the preceding 12-month period, are eligible for leave under the act. Special rules apply when a husband and wife are employed by the same employer, for highly compensated employees, and for local educational agencies. “Employee” has the same meaning as under the FLSA, so persons who are covered by the FLSA (even if they are “exempt”) are covered by the FMLA.  Persons who are not covered include elected officials, political appointees, volunteers, independent contractors and legal advisors.

Under the basic leave entitlement, qualified employees are entitled to a total of 12 workweeks of unpaid leave during a 12-month period for the following reasons:

(a) The birth of a son or daughter, and to care for the newborn.

(b) The placement of an adopted or foster son or daughter, and care afterwards.

(c) To care for spouse, son, daughter or parent with serious health condition.

(d)  For the employee’s own serious health condition that makes the employee unable to perform the functions of the employee’s job.

The 2008 FMLA amendments added two new military family leave entitlements. The first provision allows an eligible employee with a spouse, son, daughter, or parent who is serving on active duty or is called to active duty in a foreign country to use FMLA leave for a “qualifying exigency,” which may include attending certain military events, arranging for child care, making financial and legal arrangements, attending counseling sessions, and attending post-deployment reintegration briefings.

The second provision allows an eligible employee to take up to 26 workweeks of leave during a “single 12-month period” to care for a spouse, son, daughter, or parent with a serious injury or illness incurred in the line of duty while serving on active duty. The 12-month period for this type of FMLA leave begins on the first date the employee takes leave to care for the injured servicemember and ends 12 months later. If the employee does not take all of the 26 workweeks during this time, the remainder of the leave is forfeited.

Employees returning to work from FMLA leave must be restored to the same or an equivalent position (one that has equivalent pay, benefits, duties and responsibilities, and no loss of accrued benefits).

Health insurance coverage must be maintained under the same conditions as when the employee is actively at work (i.e., if the employee pays part of the insurance premiums, the employee may be required to continue paying that portion of the premiums), and must be restored immediately upon the employee’s return to work, regardless of whether premiums were paid during leave.

Intermittent leave (irregular, e.g., to take periodic medical treatments) is permitted if it is medically necessary for the employee or for the care of family member. Intermittent leave is not available to care for a healthy newborn or newly-placed child unless the employer agrees.

Reduced leave (regular reduced number of hours per day or week) is allowed if it is medically necessary for the employee’s illness or for the care of family member. It is only available by agreement with the employer to care for a healthy newborn or newly-placed child.

Employees can use paid leave as part of their FMLA entitlement if the employer already provides it under an established leave plan.  However, the FMLA does not require paid leave.

Employers have certain rights under the FMLA. The employer has the right to reasonable advance notice of an employee’s need to take FMLA leave. At least 30 days advance notice is required for foreseeable occurrences (birth, adoption, planned medical treatment, etc.); otherwise, as much notice as is “practicable.” Scheduled medical treatment should be arranged to avoid disruption of the workplace.

The employer can require medical certifications of the need for leave and the expected dates of the absence, and periodic status reports or re-certification on a reasonable basis. The employer can require a second opinion (at the employer’s expense) if the employer has reason to doubt the employee’s medical certification, and if the second one is different, the employer can require a third opinion (at the employer’s expense). The employer can assign the employee to an “alternative position” if the employee has requested intermittent or reduced leave (with equivalent pay and benefits). The employer can require certification that the employee is able to return to work, pursuant to a uniformly applied policy. The employer can require the employee to repay any health insurance premiums paid by the employer on behalf of the employee if the employee does not return to work (unless the employee is medically unable to return to work).  The employer can require the employee to take accrued paid leave as part of the 12 weeks of FMLA leave.

The employer must choose one of the following methods for determining the 12-month period for FMLA leave (except leave to care for an injured servicemember as discussed above): (1) the calendar year; (2) any fixed 12-month period (such as a fiscal year or a year beginning on the employee’s anniversary date); (3) the 12-month period measured forward from the date the employee’s first leave begins (the employee would be entitled to 12 weeks of leave during the 12 months after leave begins (the next 12-month period would begin the first time the employee requests FMLA leave after completion of the previous 12-month period); or (4) a “rolling” 12-month period counted backward from the date the employee uses any FMLA leave. The employer must choose one of the above methods and that method must be applied consistently to all employees.

During leave, there can be no loss of accrued benefits. Special rules apply for salaried employees who are among the highest paid 10 percent of the employer’s employees within a 75-mile radius of the work site; these employees can be denied restoration of employment under certain circumstances. Special rules apply for employees of local educational agencies with regard to the timing of leave.