The Family and Medical Leave Act initially became law when signed in 1993 by former President Clinton. It has undergone multiple revisions since then, most recently on Oct. 28, 2009, when the the National Defense Authorization Act for Fiscal Year 2010 was signed. Affected employers All private employers with 50 or more employees, including part-time workers, within a 75-mile radius.
Also covered are federal civil service employees, state and local government workers and employees of Congress.
Situations qualifying for unpaid leave Eligible employees can take up to 12 weeks annually of unpaid, job-protected leave for one or more of the following reasons:
- the birth of a son or a daughter of the employee and in order to care for such son or daughter;
- the placement of a son or daughter with the employee for adoption or foster care;
- the care of a spouse, son, daughter or parent of the employee, if such spouse, son, daughter or parent has a serious health condition; or
- an employee's own serious health condition that makes the employee unable to perform the functions of his or her position.
- 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 who is the spouse, son, daughter, parent, or next of kin to the employee (military caregiver leave).
Eligible employees An employer can limit eligibility to employees who have been employed for at least one year and worked at least 1,250 hours during the 12-month period preceding the start of leave.
A key provision of the legislation is the requirement that an eligible employee be restored to his or her former position or to "an equivalent position with equivalent benefits, pay and other terms and conditions of employment" following the expiration of his or her leave.
The law exempts from the employment restoration requirement any salaried employee who is among the highest paid 10 percent of workers of the employer. To take advantage of this exemption, an employer must prove that such denial of employment restoration is necessary to prevent "substantial and grievous economic injury to the operations of the employer." The employer also must immediately notify the employee that it plans to use the exemption.
Health insurance The employer must continue to provide health benefits during the leave at the same level as if the worker had continued in his or her regular position. The worker must continue to pay appropriate premiums, copayments and other out-of-pocket costs required under the health plan.
Employees who fail to return to work after their entitled leave has expired may be required to repay health premiums their employer expended to continue their coverage during the leave period, unless that failure is because of continuation of the medical condition or "other circumstances beyond the (employee's) control."
Integration of paid leave benefits If an employer provides paid leave benefits (such as paid vacation leave, paid personal leave or paid family leave), such paid leave may be integrated into the 12-week unpaid family leave at the option of either the employee or employer. Employers may first require employees to use up available, paid vacation or personal or sick leave. The employer then is required to provide sufficient unpaid leave for the remainder of the 12 weeks.
Proof of need for leave To support a claim for family leave an employer may require the worker to obtain a physician's certification of the existence of the health condition of the employee, spouse, parent or child. This may include a description of the condition, the date it started and expected duration. If the employer is not satisfied with the certification, it may require, at its own expense, a second opinion. The employer may pay for a third opinion if the first two conflict. The third opinion is binding on both parties.
Employee responsibilities Employees generally must give their employers at least 30 days' notice of their intention to take leave when the participating event is foreseeable, such as a birth, adoption or planned medical treatment. In planned medical treatments, employees also are required to make reasonable effort to schedule the treatment so it does not disrupt the employer's operation.
Intermittent or reduced leave may be taken by employees when medically necessary to care for themselves or children, spouses or parents. Intermittent leave refers to leave on an occasional basis. Reduced leave is taken on a regular, reduced work schedule. The employer may require the employee to transfer to another position at the same pay or benefits to better accommodate the recurring periods of required leave.
Effect on state laws The federal law only pre-empts state laws that are less generous. For example, if a state law required up to 16 weeks of family leave, employers in that state would have to offer up to 16 weeks of leave rather than the 12 weeks as required by the federal law.
Employer action needed Employers should take this opportunity to review their attendance, leave and absenteeism policies to ensure full compliance with the law.
Recent changes In addition to the military service-related changes described above, the FMLA has undergone some additional modifications. On Nov. 17, 2008, the Department of Labor (DOL) published its final rule to implement the first-ever amendments to the Family and Medical Leave Act (FMLA); these regulations provide the above-referenced military family leave entitlements and also update the existing regulations under the 15-year-old FMLA.
Specific and noteworthy elements of these regulations include the following:
Qualifying exigency leave: The second new military leave entitlement helps families of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation. This provision makes the normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation. The department's final rule defines qualifying exigency by referring to a number of broad categories for which employees can use FMLA leave:
- short-notice deployment;
- military events and related activities;
- childcare and school activities;
- financial and legal arrangements;
- rest and recuperation;
- post-deployment activities; and
- additional activities not encompassed in the other categories, but agreed to by the employer and employee.
Light duty work: Under the final rule time spent performing “light duty” work does not count against an employee's FMLA leave entitlement and that the employee's right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year). If an employee is voluntarily performing a light-duty assignment, the employee is not on FMLA leave.
Serious health condition: The final rule retains the six individual definitions of serious health condition while adding guidance on three regulatory matters. One of the definitions of serious health condition involves more than three consecutive, full calendar days of incapacity plus “two visits to a health-care provider.” Under the final rule, the two visits must occur within 30 days of the beginning of the period of incapacity and the first visit to the health-care provider must take place within seven days of the first day of incapacity. A second way to satisfy the definition of serious health condition under the current regulations involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The final rule clarifies here also that the first visit to the health-care provider must take place within seven days of the first day of incapacity. Thirdly, the final rule defines “periodic visits” for chronic serious health conditions as at least two visits to a health-care provider per year since that provision also is open-ended in the current regulations and potentially subjects employees to more stringent requirements by employers.
Substitution of paid leave: FMLA leave is unpaid. However, the statute provides that employees may take, or employers may require employees to take, any accrued paid vacation, personal, family or medical or sick leave, as offered by their employer, concurrently with any FMLA leave. This is called the “substitution of paid leave.” The current regulations apply different procedural requirements to the use of vacation or personal leave than to medical or sick leave. Complicating matters even further, the department has treated family leave differently than vacation and personal leave. Accordingly, under the final rule, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted (including generic “paid time off”). An employee electing to use any type of paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer's policy that apply to other employees for the use of such leave. The employee is always entitled to unpaid FMLA leave if he or she does not meet the employer's conditions for taking paid leave and the employer may waive any procedural requirements for the taking of any type of paid leave.
Employee notice: The final rule provides that an employee needing FMLA leave must follow the employer's usual and customary call-in procedures for reporting an absence, absent unusual circumstances. The final rule also highlights (without changing) the existing consequences if an employee does not provide proper notice of his or her need for FMLA leave.