Many of us have heard of the Family & Medical Leave Act (FMLA), but wonder what exactly it is and to whom it applies. Private sector employers who have at least fifty (50) employees should pay special attention, because the FMLA applies to you!
In 1993, Congress enacted the Family & Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., to protect workers who need to take limited leaves of absence from their jobs for certain family and medical reasons. Congress stated that the purpose of the FMLA includes the need to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity and to entitle employees to take reasonable leave for the reasons stated below. FMLA § 2(b)(1), 29 U.S.C. § 2601(b)(1). In addition, Congress stated the following as some of the reasons supporting its decision to pass the FMLA:
a. it is important for the development of children and the family unit that fathers and mothers be able to participate in early child-rearing and the care of family members who have serious health conditions;
b. the lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting; and
c. due to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men.
FMLA § 2(a)(2), (3), (5), 29 U.S.C. § 2601(a)(2), (3), (5). As a result of these concerns, Congress passed the FMLA, which allows an employee to take leave for the following reasons:
- to care for your child after birth or adoption or a foster placement;
- to care for your spouse, your parent, your child under the age of 18, or your child if he or she has a disability that makes him or her incapable of self-care, if he or she has a serious health condition; or
- if you are unable to perform your job due to a serious health condition.
To be protected by the FMLA, an employee must meet the following requirements:
- The employee’s private sector employer must have at least fifty (50) employees. (Note: The FMLA also covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the “50 employee” test. The FMLA also covers most federal employees, who are subject to regulations issued by the Office of Personnel Management.);
- The employee must have been employed by the employer for at least one (1) year; and
- The employee must have worked at least 1,250 hours over the last twelve (12) months of employment. (This equals 31 weeks of 40-hour weeks or 52 weeks of 24-hour weeks).
An employee taking leave under the FMLA is entitled to a maximum of twelve (12) weeks per year of leave. The FMLA permits an employee to take intermittent leave, or leave on a reduced schedule, for planned medical treatment for a serious health condition. The employer is not required under the FMLA to pay the employee on leave; however, an employee may elect, and in some cases an employer may require, the employee to use available accrued paid leave, such as sick time or vacation time during the FMLA leave period. Be aware, though, that even if this time is paid, it still counts against an employee’s twelve (12) weeks of FMLA leave, as long as the employer properly notified the employee at the time when the leave began.
Typically, if the need for leave is foreseeable, an employee must give thirty (30) days advance notice before taking FMLA leave. In cases where the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one (1) or two (2) working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible. The timing of the notice is dependent upon the nature of the circumstances that cause the need for leave to arise. In the case of a medical emergency requiring leave because of an employee’s own serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer’s internal rules and procedures may not be required when FMLA leave is involved. 29 C.F.R. Part 825.303.
Upon notice to an employer of the need for FMLA leave, the employer may not require that the employee submit medical records to support the need for FMLA leave. However, the employer can require the employee to provide a medical certification to support the request for leave based upon a serious health condition. Also, the employer may require the employee to go to another doctor of its choosing for a second opinion, though the employer must pay for the examination and cannot see the employee’s medical records.
The FMLA provides an employee with various job protections and benefits while on FMLA leave. During the duration of an employee’s FMLA leave, the employer must maintain any health coverage the employee has under a group health plan. Also, most employees must be restored to their original or equivalent positions, with equivalent pay, benefits, and other employment terms, when they return from FMLA leave. Additionally, the FMLA prohibits the employer from interfering with or denying an employee’s rights under the FMLA or from discharging or discriminating against any person who opposes any action by an employer that is unlawful under the FMLA or who is involved in any proceeding under the FMLA.
A subject of much case law regarding FMLA leave is whether the health condition causing the need for leave constitutes a “serious health condition” within the meaning of the FMLA. The FMLA defines a “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider” FMLA § 101(11), 29 U.S.C. §2611. This definition is somewhat ambiguous, and courts tend to turn to legislative history of the FMLA for guidance. The legislative history states that examples of “serious health conditions” include but are not limited to the following: heart attacks, heart conditions requiring heart bypass of valve operations, most cancers, back conditions requiring extensive therapy or surgical procedures, strokes, severe respiratory conditions, spinal injuries, appendicitis, pneumonia, emphysema, severe arthritis, severe nervous disorders, injuries caused by serious accidents on or off the job, ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth and recovery from childbirth. H.R.Rep. No. 8, 103rd Cong., 1st Sess., pt. 1 at 29 (1993). Although this list was not intended by Congress to be exhaustive, these are types of illnesses which Congress feels “meet the general test that either the underlying health condition of the treatment for it requires that the employee be absent from work on a recurring basis or for more than a few days for treatment or recovery.” Id. Congress sought to exempt those “minor illnesses which last only a few days and surgical procedures which typically do not require hospitalization and require only a brief recovery period.” Id. In addition, the Department of Labor, pursuant to Section 404 of the FMLA, prescribed substantive regulations which further expound on the meaning of “serious health condition.” These regulations can be found at 29 C.F.R. § 825.114. As stated above, what constitutes a “serious health condition” is the topic of much litigation and is determined on a case-by-case basis.
Another area regarding the FMLA which typically requires litigation to sort out is the situation where an employee is injured on the job and qualifies for workers’ compensation. The question often is whether an employee must apply for FMLA during the time he or she is absent from work due to the work-related injury. The intersection of the FMLA, Workers’ Compensation, and the Americans with Disabilities Act is frequently referred to as the “Bermuda Triangle” of employment law. If a situation arises in your business which falls into this Bermuda Triangle, or if you are an employee who requires assistance, it is a good idea to contact the lawyers at Wolf, Baldwin & Associates, P.C. to discuss the situation in detail.
Employers should be aware that the FMLA provides that covered employers shall make, keep, and preserve records pertaining to their obligations under the Act in accordance with the recordkeeping requirements of section 11(c) of the Fair Labor Standards Act (FLSA) and in accordance with these regulations. 29 C.F.R. Part 825.500. In addition, every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, whether or not it has any “eligible” employees, a notice explaining the Act's provisions and providing information concerning the procedures for filing complaints of violations of the Act with the Wage and Hour Division. The notice must be posted prominently where it can be readily seen by employees and applicants for employment. 29 C.F.R. Part 825.300.
It is a good idea for all private sector employers with at least fifty (50) employees to be familiar with the FMLA and its requirements. For more information regarding the FMLA, you can call the United States Department of Labor’s Wage and Hour Division (WHD) toll-free information and help line at 1-866-4USWAGE (1-866-487-9243), or browse their website at http://www.dol.gov/WHD/fmla/.
The attorneys of Wolf, Baldwin & Associates, P.C. have experience representing both employers and employees in discrimination, sexual harassment, and other employment claims. We can also advise you about potential workers’ compensation or unemployment compensation rights. We can help victims of discrimination, and we can counsel businesses regarding actual and potential employment claims. Our lawyers can help you learn your employment law rights and protect those rights. Click here to contact us today to schedule an appointment, so that we can discuss your employment situation. We look forward to speaking with you.
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