What is the Family Medical Leave Act?February 4, 2013

The federal Family and Medical Leave Act (FMLA), provides job security to an employee who is absent from work because of the employee’s own serious condition or to care for specified family members with serious health conditions. This includes the birth of a child, care for a newborn child, child being placed for adoption or foster care of a child of an employee.  Congress enacted the FMLA because employer leave policies often did not permit employees to miss work during serious illness or to reasonably balance family obligations and work responsibilities. Therefore, the purpose of the Act was to “balance the demands of the workplace with the needs of the families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.”

Overview

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

• Twelve workweeks of leave in a 12-month period for:
  • the birth of a child and to care for the newborn child within one year of birth;
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • to care for the employee’s spouse, child, or parent who has a serious health condition;
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

• Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Paid vs. Unpaid Leave

FMLA leave is unpaid unless available paid time off is taken (e.g., vacation, paid sick time or paid personal time off) and/or unless disability benefits are available. Disability benefits may include worker’s compensation payments, and/or payments from an employer’s short term or long term disability plan.

Covered Employers

The FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.  Full time and part time employee’s whose names appear on an employer’s payroll in a calendar week are considered to be “employed” regardless of whether or not the employee receives compensation and are counted to meet the required number.

Eligible Employees

To be eligible for leave under the FMLA, an employee must meet all of the following criteria:

• Employed by the employer for at least 12 months as of the date leave commences;
• Employed for at least 1250 hours of service during the 12 month period immediately preceding commencement of the leave; and
• Employed at a worksite where the employer employs at least 50 employees within 75 miles.

Requirements

If an employee was receiving group health benefits when leave began, an employer must maintain them at the same level and in the same manner during periods of FMLA leave as if the employee had continued to work. An employee may elect (or the employer may require) the substitution of any accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave.  Substitution means the accrued paid leave runs concurrently with the FMLA leave period.  An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy.

Employees may take FMLA leave intermittently or on a reduced leave schedule (that is, in blocks of time less than the full amount of the entitlement) when medically necessary or when the leave is due to a qualifying exigency. Taking intermittent leave for the placement for adoption or foster care of a child is subject to the employer’s approval. Intermittent leave taken for the birth of a child is also subject to the employer’s approval.  However, employer approval is not required for intermittent or reduced schedule leave that is medically necessary due to pregnancy, a serious health condition, or the serious illness or injury of a covered service member. Employer approval also is not required when intermittent or reduced schedule leave is necessary due to a qualifying exigency.

When the need for leave is foreseeable, an employee must give the employer at least 30 days notice, or as much notice as is practicable. When the leave is not foreseeable, the employee must provide notice as soon as practicable in the particular circumstances.  An employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.

Ryan A. Hintzen

Attorney

The Hintzen Law Firm, PLLC