Family and Medical Leave Act
The Federal Family and Medical Leave Act requires covered employers to provide up to 12 weeks of unpaid leave to eligible employees in connection with their own serious illnesses, the qualifying illnesses of immediate family members, the birth of a child, or the placement of a child for adoption or foster care. As amended in 2008, the FMLA also applies to certain situations involving service in the Armed Forces and allows eligible employees to take up to 26 weeks of unpaid leave if family members incur serious injuries or illnesses while on active duty (29 U.S.C. § 2601, 2611-2619). The FMLA is administered and enforced by the U.S. Department of Labor. Some states have laws providing broader leave rights than the FMLA.
Employer and Employee Coverage
In general, employers with 50 or more employees within a 75 mile radius are covered by the FMLA. The statute's leave protections become available to employees once they have accumulated at least 12 months of service, provided they have worked at least 1,250 hours during the 12 months before FMLA leave begins.
Reasons for FMLA Leave
Covered employees can take up to 12 weeks of FMLA leave during a 12-month period for the following reasons:
Child birth or care of a newborn
Placement of a child for adoption or foster care
To care for a parent or child with a serious health condition
Because employees' own serious health conditions prevent them from performing their job duties
Because a parent, spouse or child is called up for or on active duty in the Armed Forces(qualifying circumstances to be defined in Labor Department regulations)
The FMLA also requires employers to provide up to 26 weeks of unpaid leave to eligible employees to care for a spouse, child, parent, or next of kin who incurs a serious injury or illness in the line of duty while serving in the Armed Forces.
Definition of a Serious Health Condition
In many cases, eligibility for FMLA leave depends on the existence of a “serious health condition,” which the law defines as a condition involving inpatient care or continuing treatment by a health care provider. In general, “inpatient care” means an overnight stay at a hospital or medical facility, and all subsequent treatment for the same condition also qualifies for FMLA leave. The “continuing treatment” standard, meanwhile, can apply to pregnancy and chronic conditions, as well as illnesses resulting in a period of incapacity of at least three days and requiring at least two visits to a health care provider or only one office visit along with a continuing treatment regimen supervised by a health care provider.
Leave Procedures
Most FMLA provisions focus on the obligations of employers during the leave process, but employees also shoulder certain responsibilities. Below are some of the main requirements under the law.
Leave Request: Employers can establish procedures for leave requests and require 30 days' advance notice in situations where the need for leave is foreseeable. Under circumstances such as medical emergencies, where the need for leave is unforeseen, employees must request leave “as soon as practicable.” In such cases, even unscheduled absences can qualify for FMLA protection if employees contact their employers within one or two business days of learning of the need for leave.
Leave Designation: Employers are responsible for deciding if employees' time off will be counted as FMLA leave, and they must give employees written notification of the FMLA leave designation.
Medical Certification: To verify the need for leave in connection with serious health conditions, employers can require medical certifications from health care providers. Employers can require periodic reports during FMLA leave about employees' status and intention to return to work.
Paid Leave Substitution: Employers can require employees to substitute accrued paid leave for unpaid FMLA leave where applicable. Employees can request substitution of paid leave.
Benefits Continuation: Employers that offer health care benefits to employees must continue coverage during FMLA leave under the same conditions as those that existed prior to leave. They are not required to provide other benefits, such as life insurance, holiday pay, and disability insurance, to employees on FMLA leave unless employers' policies provide such benefits to employees on paid or unpaid leave.
Job Restoration: At the conclusion of FMLA leave, employees must be returned to the same position they previously held or one that is equivalent in terms of pay, benefits, and other employment terms and conditions.
Record Keeping
Employers must track and record the dates and amounts of FMLA leave used by employees. Records with medical information about employees or their family members must be kept separate from employees' personnel files.
Notification Requirements
To notify employees of their rights under the law, covered employers must post an FMLA notice in the workplace. The Department of Labor has created a notice that employers can use to satisfy the posting requirement. In addition, employers must either incorporate information about the FMLA into employee handbooks and policy manuals or, if they do not have written policy materials, provide employees with a separate document that informs them of their FMLA rights and responsibilities.
Penalties for FMLA Violations
Employees or the Department of Labor can sue employers for alleged FMLA violations. Employers can be ordered to pay lost wages and benefits and other monetary losses, liquidated damages, legal fees, and interest. In addition, employers can be ordered to reinstate or promote employees.
Violations of the posting requirement can be penalized with fines of up to $100 per offense.
For a more information on FMLA and how it may affect your company contact
Almond Valley Insurance Services, Inc. or visit the
Department of Labor online.
