COMPLYING WITH THE FAMILY AND MEDICAL LEAVE ACT

Enacted in 1993, the Family and Medical Leave Act (FMLA) was based on the principle that a worker should not have to choose between a job and their family. It made the healthy development of babies, healthy families, and healthy workplaces a priority. FMLA requires covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. The federal labor law has been used more than 100 million times to help workers balance the demands of the workplace with the needs of their families and their own health.

While FMLA has been beneficial for employees, HKQ Law Employment Law Attorney Lars H. Anderson notes that “the nuances of FMLA can make compliance challenging for employers. It is imperative that employers have a clear understanding of their FMLA obligations, as well as those of their employees.”

FMLA applies to:

Covered Employers

The FMLA only applies to employers that meet certain criteria. A covered employer is:

• a private-sector employer, with 50 or more employees in 20 or more work weeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer.
• a public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs.
• a public or private elementary or secondary school, regardless of the number of employees it employs.

Eligible Employees

Only eligible employees are entitled to take FMLA leave. An eligible employee is one who:

• works for a covered employer.
• has worked for the employer for at least 12 months; must have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave.
• works at a location where the employer has at least 50 employees working within 75 miles.

The 12 months of employment do not have to be consecutive. Any time previously worked for the same employer (including seasonal work) could usually be used to meet the 12-month requirement. If the employee has a break in service that lasted seven years or more, the time worked prior to the break will not count unless the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA), or there is a written agreement, including a collective bargaining agreement, outlining the employer’s intention to rehire the employee after the break in service.

Duties under FMLA

Employers must:

• post specific Department of Labor notice explaining rights and responsibilities under the FMLA.
• include information about the FMLA in their employee handbooks or provide information to new employees upon hire.
• provide the employee with notice concerning eligibility for FMLA leave and the employee’s rights and responsibilities under the FMLA. (This requirement is triggered when an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA-qualifying reason.)
• notify employees whether leave is designated as FMLA leave and the amount of leave that will be deducted from the employee’s FMLA entitlement.

Employees

Generally, FMLA requires an employee to give the employer 30 days’ notice of intention to take FMLA leave and the reason for the leave. An employee does not have to use the term FMLA when requesting leave, but must provide the employer enough information to know the employee is requesting time off, and why. When the need for FMLA leave arises suddenly, such as an unexpected medical emergency, the employee may take FMLA leave without prior notice, but must give the employer as much notice as is reasonable under the circumstances.

When an employee requests FMLA leave due to his or her own serious health condition or a covered family member’s serious health condition, the employer may require certification in support of the leave from a health care provider. An employer may also require second or third medical opinions (at the employer’s expense) and periodic recertification of a serious health condition.

What FMLA provides

The FMLA entitles covered employees to as much as 12 weeks of leave in every 12-month period, in order to handle important health and family issues. While the employee’s leave under the FMLA is unpaid, the employee continues to receive health-care benefits as if he or she were still actively employed. At the end of the leave period, the employer must, in most cases, reinstate the employee in the same job or to an “equivalent” position. (i.e., a job having the same or similar pay, hours, work performed, work conditions, job responsibilities, and job security.)

Eligible employees may take up to 12 work weeks of leave in a 12-month period for one or more of the following reasons.

• the birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care.
• to care for a spouse, son, daughter, or parent who has a serious health condition.
• for a serious health condition that makes the employee unable to perform the essential functions of his or her job.
• for any qualifying urgent need or demand arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

An eligible employee may also take up to 26 work weeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the service member. (The “single 12-month period” for military caregiver leave is different from the 12-month period used for other FMLA leave reasons.)

Under some circumstances, employees may take FMLA leave on an intermittent or reduced schedule basis. That means an employee may take leave in separate blocks of time or by reducing the time he or she works each day or week for a single qualifying reason.

FMLA prohibitions

Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Employers are further prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempting to exercise any FMLA right.

Staying compliant

As this overview of the FMLA illustrates, the law is quite complex. An employer’s violation of FMLA can be costly. What’s more, employers can find themselves liable for several different damages. These include lost back pay, lost front pay, and liquidated damages (if the employer didn’t act in good faith.)

At HKQ Law we can help you navigate the intricacies of the FMLA. To speak with an HKQ Law Employment Law Attorney, call (800) 760-1529.