Family and Medical Leave Act of 1993
The U.S. Department of Labor's Employment Standards Administration,
Wage and Hour Division, administers and enforces the Family and Medical Leave Act (FMLA) for all private, state and local
government employees, and some federal employees. Most Federal and certain congressional employees are also covered by the
law and are subject to the jurisdiction of the U.S. Office of Personnel Management or the Congress.
FMLA became effective
on August 5, 1993, for most employers. If a collective bargaining agreement (CBA) was in effect on that date, FMLA became
effective on the expiration date of the CBA or February 5, 1994, whichever was earlier. FMLA entitles eligible employees to
take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. The employer
may elect to use the calendar year, a fixed 12-month leave or fiscal year, or a 12-month period prior to or after the commencement
of leave as the 12-month period.
The law contains provisions on employer coverage; employee eligibility for the law's
benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification
of the need for FMLA leave; and, protection for employees who request or take FMLA leave. The law also requires employers
to keep certain records.
FMLA applies to all:
· public agencies, including state, local and
federal employers, local education agencies (schools), and
· private-sector employers who employed 50 or more employees
in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity
affecting commerce including joint employers and successors of covered employers.
To be eligible
for FMLA benefits, an employee must:
(1) work for a covered employer;
(2) have worked for the employer for a total
of 12 months;
(3) have worked at least 1,250 hours over the previous 12 months; and
(4) work at a location in the
United States or in any territory or possession of the United States where at least 50 employees are employed by the employer
within 75 miles.
A covered employer must grant an eligible employee up to a total of 12 workweeks
of unpaid leave during any 12-month period for one or more of the following reasons:
· for the birth and care of the
newborn child of the employee;
· for placement with the employee of a son or daughter for adoption or foster care;
to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
· to take medical
leave when the employee is unable to work because of a serious health condition.
Spouses employed by the same employer
are jointly entitled to a combined total of 12 work-weeks of family leave for the birth and care of the newborn child, for
placement of a child for adoption or foster care, and to care for a parent who has a serious health condition.
birth and care, or placement for adoption or foster care must conclude within 12 months of the birth or placement.
some circumstances, employees may take FMLA leave intermittently which means taking leave in blocks of time, or by reducing
their normal weekly or daily work schedule.
· If FMLA leave is for birth and care or placement for adoption or foster
care, use of intermittent leave is subject to the employer's approval.
· FMLA leave may be taken intermittently whenever
medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work.
Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation
leave) to cover some or all of the FMLA leave.
The employer is responsible for designating if an employee's use of paid
leave counts as FMLA leave, based on information from the employee.
"Serious health condition" means an illness,
injury, impairment, or physical or mental condition that involves either:
· any period of incapacity or treatment connected
with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period
of incapacity or subsequent treatment in connection with such inpatient care; or
· Continuing treatment by a health care
provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities)
(1) A health condition (including treatment therefor, or recovery therefrom) lasting more than three consecutive
days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:
two or more times by or under the supervision of a health care provider; or
· one treatment by a health care provider
with a continuing regimen of treatment; or
(2) Pregnancy or prenatal care. A visit to the health care provider is not
necessary for each absence; or
(3) A chronic serious health condition which continues over an extended period of time,
requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes).
A visit to a health care provider is not necessary for each absence; or
(4) A permanent or long-term condition for which
treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal cancer). Only supervision by a health care provider
is required, rather than active treatment; or
(5) Any absences to receive multiple treatments for restorative surgery
or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy
or radiation treatments for cancer).
"Health care provider" means:
· doctors of medicine or osteopathy
authorized to practice medicine or surgery by the state in which the doctors practice; or
· podiatrists, dentists, clinical
psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated
by X-ray to exist) authorized to practice, and performing within the scope of their practice, under state law; or
practitioners, nurse-midwives and clinical social workers authorized to practice, and performing within the scope of their
practice, as defined under state law; or
· Christian Science practitioners listed with the First Church of Christ, Scientist
in Boston, Massachusetts; or
· Any health care provider recognized by the employer or the employer's group health plan
MAINTENANCE OF HEALTH BENEFITS
A covered employer is required to maintain group health insurance
coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms
as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share
of health insurance premiums while on leave.
In some instances, the employer may recover premiums it paid to maintain
health coverage for an employee who fails to return to work from FMLA leave.
Upon return from FMLA
leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits,
and other terms and conditions of employment.
In addition, an employee's use of FMLA leave cannot result in the loss
of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the
employee under a "no fault" attendance policy.
Under specified and limited circumstances where restoration to
employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain
highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so,
the employer must:
· notify the employee of his/her status as a "key" employee in response to the employee's
notice of intent to take FMLA leave;
· notify the employee as soon as the employer decides it will deny job restoration,
and explain the reasons for this decision;
· offer the employee a reasonable opportunity to return to work from FMLA
leave after giving this notice; and
· make a final determination as to whether reinstatement will be denied at the end
of the leave period if the employee then requests restoration.
A "key" employee is a salaried "eligible"
employee who is among the highest paid ten percent of employees within 75 miles of the work site.
NOTICE AND CERTIFICATION
Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when
the need is foreseeable and such notice is practicable.
Employers may also require employees to provide:
certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family
· second or third medical opinions (at the employer's expense) and periodic recertification; and
reports during FMLA leave regarding the employee's status and intent to return to work.
When intermittent leave is needed
to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must
try to schedule treatment so as not to unduly disrupt the employer's operation.
Covered employers must post a notice approved
by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this posting
requirement may be subject to a fine of up to $100 for each separate offense.
Also, covered employers must inform employees
of their rights and responsibilities under FMLA, including giving specific written information on what is required of the
employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave.
It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided
by FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice,
or because of involvement in any proceeding, related to FMLA.
The Wage and Hour Division investigates
complaints. If violations cannot be satisfactorily resolved, the U.S. Department of Labor may bring action in court to compel
compliance. Individuals may also bring a private civil action against an employer for violations.
rules apply to employees of local education agencies. Generally, these rules provide for FMLA leave to be taken in blocks
of time when intermittent leave is needed or the leave is required near the end of a school term.
administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for
exemption from minimum wage and overtime under Regulations, 29 CFR Part 541, do not lose their FLSA-exempt status by using
any unpaid FMLA leave. This special exception to the "salary basis" requirements for FLSA's exemption extends only
to "eligible" employees' use of leave required by FMLA.
The FMLA does not affect any other federal or state
law which prohibits discrimination, nor supersede any state or local law which provides greater family or medical leave protection.
Nor does it affect an employer's obligation to provide greater leave rights under a collective bargaining agreement or employment
benefit plan. The FMLA also encourages employers to provide more generous leave rights.
rule implementing FMLA is contained in the January 6, 1995, Federal Register. For more information, please contact the nearest
office of the Wage and Hour Division, listed in most telephone directories under U.S. Government, Department of Labor.