Family Medical Leave Act
The Family and Medical Leave Act (FMLA) was enacted in 1993 to balance the needs of family with the demands of work. This balance often places employers and employees at odds when the need for leave is questioned. Oftentimes, employees are unaware of their right to FMLA leave. It is important for employees to be aware of their rights, know where they come from, and be able to exercise those rights.
In the enactment of the FMLA, Congress specifically stated that the purposes of the Act was to:
Balance workplace demands with family needs
Promote the family’s stability and economic security
Promote national interests by preserving family integrity
Entitle employees to take a reasonable leave for: medical reasons; the birth or adoption of a child; and the care of a child, spouse, or parent who has a serious health condition;
Accomplish the FMLA’s purposes in a manner that accommodates employers’ legitimate interests
Accomplish the FMLA’s purposes in a manner that, consistent with the Equal Protection Clause of the United States Constitution’s Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons, including maternity-related disability, and for compelling family reasons, on a gender neutral basis
Promote the goal of equal opportunity for females and males.
There are Six Titles to the FMLA. These titles govern different aspects of the act and include:
•Title I - General Requirements for Leave is what is typically referred to as the FMLA and covers most private employers. This Title provides the reasons leave is permitted, the duration of the leave and potential reinstatements, and the continuing obligations of employers and employees. It also provides definitions of the FMLA’s key terms.
Title II - Leave for Federal Civil Service Employees provides the same type of information as Title I except it is designed for federal civil service employees.
Title III - Commission on Leave established a bipartisan commission to investigate and prepare a report on the FMLA’s impact on employers and employees, to review the state laws, and to investigate potential additional legislation to provide leave benefits for employees not covered by the FMLA. The Commission completed its report and was disbanded in 1996.
Title IV - Miscellaneous Provisions, includes provisions regarding integration of the FMLA with state laws, non-discrimination, and authorization for the establishment of regulations by the Department of Labor.
Title V - Coverage of Congressional Employees provides for similar coverage as for Senate and House employees and describes some differences from Titles I and II.
Title VI - Sense of Congress is a rider that requires the Secretary of the Department of Defense to review its policies with respect to the service of homosexuals in the armed forces.
Like most employment laws, the FMLA provides employee rights to which an employer must adhere. The Act protects employees from retaliation by an employer for exercising those rights. Specifically, there is a clause in the Act known as the “participation clause” which makes it unlawful to discriminate against an employee for exercising rights under the FMLA. These clauses are modeled in a similar fashion as provisions contained in Title VII of the Civil Rights Act of 1964 and the Fair Labor Standards Act. The Act further provides that an employer shall not interfere with or deny an employee an opportunity to exercise his FMLA rights. This provision is referred to as the FMLA’s opposition clause.
The FMLA permits an employee to take twelve weeks of unpaid leave for various family and medical related reasons. However, it is noteworthy that an employer may require that an employee apply any accrued leave to offset all or part of the leave period. An employer can additionally require an employee to certify leave eligibility through confirmation of the medical issue, and may even obtain second and third medical opinions in certain circumstances. Do not get discouraged if you are faced with requests for medical documents/doctors notes. These are often formalities, and simply to deter frivolous requests for leave.
The FMLA puts the responsibility on the employer to determine if an employee’s leave requested falls under the FMLA. If they believe it could, they must provide the necessary paperwork for the employee to exercise their right to this leave. However, with the employee’s right to leave comes the duty to give notice to their employer of the need for leave. This notice should be at least thirty days in advance, when the need for leave is foreseeable, unless such notice is not practicable. For unforeseeable leave, an employee should notify their employer as soon as practicable.
Upon return from FMLA leave, an employee is entitled reinstatement to their previously held position or an equivalent position. An employee who returns from leave is not entitled, however, to any benefit she would not have been qualified for had she not taken leave. Therefore, if the position would otherwise have been eliminated in a reorganization or layoff, the employee’s status on FMLA does not provide protection against loss of the previously held position.
More recently, in 2008, the House and Senate passed legislation amending the FMLA to cover an employee’s absence from work to care for a family member or blood relative who becomes injured or ill while on active duty or in a contingency operation. President Bush signed the legislation on January 28, 2008 and the changes in the law became effective immediately. The two types of Servicemember leave which were provided include: Active Duty Leave and Caregiver Leave.
Active Duty Leave provides 12 weeks of FMLA leave to a spouse, son, daughter or parent on active duty or having been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. Essentially, this means that active duty leave may be taken for any issues related to the call up, and the leave may commence as soon as an individual receives a call up notice.
On the other hand, Caregiver Leave provides 26 weeks of FMLA leave during a single 12 month period for a spouse, son, daughter, parent, or nearest blood relative caring for a recovering servicemember. The amendment defines a recovering servicemember as a member of the Armed Forces who suffered an injury or illness while on active duty that may render the person unable to perform the duties of the member’s office, grade, rank or rating. Under both leave categories, employees can either use the leave on an incremental basis or in the smallest increment that the employer’s payroll system tracks.
In short, here are the takeaways for any employee reading this article.
FMLA only applies to business with 50+ employees. However, for franchises or multistore business, the employee count is based on how many employees are within a 75 miles of the work site in which the request is made.
To qualify as an employee under FMLA, an employee must have worked at least 1,250 hours during the previous year.
If an employer falls under FMLA, than their employees are entitled to 12 months of unpaid leave. This can be continuous leave, reduced schedule FMLA leave, or intermittent leave.
To qualify for FMLA leave, either the employee or a family member must suffer from a “serious health condition”. Serious health condition under FMLA means conditions that either prevent the worker from performing their job duties, or require the worker to care for a family members.
Conditions that fall under the “serious health condition” requirement include: pregnancy, pregnancy related complications, or adoption/fostering of a child; chronic conditions such as diabetes or epilepsy; long-term conditions such as Alzheimer’s or cancer, or conditions that require ongoing treatment such as chemotherapy, radiation, or dialysis.
If leave is foreseeable, an employee should notify their employer at least 30 days in advanced, if practicable. If unforeseeable, an employee should notify their employer of the need for leave as soon as practicable.
Upon notification, it is the employer’s duty to determine if the leave qualifies as FMLA leave and to provide the appropriate paperwork if it does.
Upon return from leave, an employee is to be reinstated in their previously held position or an equivalent position. They should also maintain the same level of benefits as were held by the employee prior to leave.
If you are unsure if you qualify for FMLA leave, have been unjustly denied your right to leave, or have been subjected to retaliation for exercising your right to leave, contact an experienced attorney at McLawhorn and Russell.