The Family Medical Leave Act (“FMLA”) was penned into law in 1993 in response to a host of issues raised by workers with young children, aging parents, personal medical issues, and ill loved ones. Prior to the enactment of the FMLA, there was nationwide inconsistency with regard to employer allowances for personal and family medical leave, ranging from generous and empathetic to “get-to-work-or-lose-your-job.” Because of this, it soon became clear that national standards were needed, and the FMLA was drafted to ensure a minimal amount of job security for those facing the unpredictable. Under the FMLA, certain eligibility requirements must be met – as well as specific qualifying reasons for the leave. Once approved, employers must also take steps to ensure the leave is honored (i.e., allowing the employee true time away from work), as well as make certain the worker has a job to return to when the time comes.
Not all workers are within the scope of the FMLA and its protections, and only those employees considered “covered” are eligible for this benefit. As concerning the private sector, the FMLA is triggered only if the business employs 50 or more employees for at least 20 weeks out of the most recent calendar year. If the employer fits into this category, it must adhere to the FMLA for any employee seeking coverage, including part-time and seasonal workers. Unpaid volunteers and any terminated employees are not eligible for FMLA, and an employer need not offer coverage to U.S.-based workers who are stationed outside of the United States for work overseas.
If an employer fits within the scope of the FMLA, it is required to unambiguously post the employees’ rights in an area that will likely be seen, such as a breakroom or high-traffic area. The federal government actually provides FMLA posters that meet this requirement, or the employer may choose to design its own notice, provided it includes the following information:
- Explanation of the provisions of the FMLA
- How to file a complaint
- General entitlements for covered workers
- Protocol to request leave
- Employer’s responsibilities
If a large number of employees speak a language other than English, the employer must post the notice in the predominant language (available from the federal government’s wage and hour division). Also, if an employee needs accommodation due to visual impairment, the employer must make the information readily available.
Qualifying reasons for leave
FMLA leave may last up to 12 work weeks within a 12-month period. When an employee is in need of time off, the employee must follow the general protocol within the workplace for requesting leave, whether that be speaking with Human Resources or a direct manager. Acceptable reasons for leave under FMLA include:
- Birth of a child
- Placement of a foster child or adoption of a child
- Any serious health condition making the employee unable to perform the functions required for the job (this includes pregnancy)
- To care for the employee’s spouse, son, daughter, or parent with a serious health condition
- Any emergency arising out of the employee’s spouse, son, daughter or parent status of a member of the military on active duty
In addition to the above, an employee with a spouse, son, daughter, parent, or next-of-kin who is a servicemember with a serious illness or injury may take 26 weeks out of a 12-month period to care for their loved one.
The term “serious health condition” is defined under federal law as an “illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.” This definition includes both acute and chronic conditions, as well as pregnancy and prenatal care. Also, if an individual needs multiple treatments at different times, FMLA leave may be sporadic to allow the employee the opportunity to tend to their loved one as needed (provided the employee does not exceed the maximum time allowable per 12-month period).
An employer has the right to request certification of the need for leave notwithstanding HIPAA protections against disclosing medical information. In addition to asking the employee directly for this information, the employer may speak to the treatment provider directly, as well as require a second opinion (at the employer’s expense) if there are questions as to the validity of the request.
Employer responsibility during leave
While an employee is out on FMLA leave, the employer maintains certain duties and obligations to that worker, including most notably keeping the employee on the healthcare and benefits plan (provided the employee continues to make his or her share of payments). The employee must be permitted to be truly off and away from work – meaning the employer cannot require telecommuting, “checking in,” or otherwise performing work tasks. Upon return, the employer must restore the employee’s original job, or an “equivalent job” with regard to compensation, benefits and access to overtime.