The Family and Medical Leave Act, or FMLA, was approved in 1993 to permit employees to take a maximum of 12 or 26 weeks, job-protected, unpaid leave for certain family and medical reasons during a 12 month period. The FMLA was designed to do three main things:
- aid individuals with balancing the pressures of the workplace with the needs of their families
- promote the economic security of families
- support national interests in protecting the integrity of families
The FMLA is very specific and defines which employers are covered and eligible for leave, and describes the preservation of health benefits during leave, as well as job restoration after leave. It protects those employees who request leave, the certification of need and notice of leave, and employers’ recordkeeping requirements.
The law also protects employees by prohibiting employers from interfering with, preventing, or denying any right provided by the FMLA. Any FMLA violations that cannot be resolved equitably can be brought to court by the U.S. Department of Labor to enforce compliance. Employees are also entitled to bring a private, civil action against an employer for FMLA violations.
The FMLA, however, does not replace any state or local law that provides greater family or medical leave protection, and does not affect an employer’s obligation to provide greater leave rights under a collective-bargaining agreement or employment benefits plan.
Employees are considered to be eligible for FMLA leave if they have worked a minimum of 1,250 hours for a covered employer. Employees, to be deemed eligible for FMLA leave, must also work for at least one year at a site where at least 50 employees of the same employer are working within 75 miles.
For employers to be considered as “covered” they must have 50 or more employees on their payroll in 20 or more work weeks in the existing, or previous calendar, and they must be involved in business. Public agencies, including state, federal and local employers, and local education agencies, regardless of the number of employees, also apply to the FMLA.
A covered employer must grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month span for any of the following reasons:
- Pregnancy, prenatal medical care or childbirth-related incident
- A severe health condition that makes the employee incapable of performing his or her job
- To care for the employee’s child after birth, or placement for adoption or foster care
- To care for the employee’s spouse, son or daughter, or parent who has a serious health condition
A serious health condition, under FMLA, is defined as an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or ongoing treatment by a healthcare provider for a condition. This serious condition either inhibits the employee from performing his or her job tasks, or prevents the effected family members from attending school or partaking in other routine activities.
Ongoing treatment has specific requirements for employees to be considered for a serious health condition as well. To be termed as an employee going through “continuous treatment,” any of the following reasons can fulfill the requirements: if the injury and incapacity to work lasts three consecutive calendar days and is combined with at least two visits to a healthcare professional, if the employee has one visit and a schedule of continuous medical care, or if the employee is in a situation where he cannot work due to a chronic illness or she cannot work because of a pregnancy.
Employees with a child, spouse, or parent on covered active duty status, or called to covered active duty status, in the Armed Forces, including the National Guard and Reserves, may also be entitled to a 12-week leave and are permitted use it in order to address any qualifying exigencies.
Qualifying exigencies include attending specific military events, arranging for alternative childcare, taking care of financial and legal arrangements, going to counseling sessions, and attending post-deployment reintegration briefings.
Special leave entitlement, through FMLA, allows employees, who are eligible, to take a maximum of 26 weeks of leave to take care of a family member who is a covered service member during a single 12-month period. A covered service member is someone who is either:
- A member of the Armed Forces who is experiencing and going through medical treatment, recuperation, therapy, in outpatient status, or on the temporary retired list for a serious injury and illness
- A veteran who was a member of the Armed Forces at any time during the five years before the date of treatment and is going through medical treatment, recuperation, or therapy for a serious injury or illness
During FMLA leave, an employee’s health coverage is mandated to be kept by the employer under any “group health plan” on the same terms as if the employee had been continuing to work. When an employee has returned from FMLA leave, typically they must be reinstated to their original positions with equivalent pay, benefits and other employment terms. The use of FMLA leave by an employee cannot result in the loss of any employment benefit that accumulated before an employee began his or her FMLA leave of absence.