5.3 Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) provides job protection for eligible employees who need time off for family or health reasons. It applies to certain employers and offers up to 12 weeks of unpaid leave per year for qualifying situations.

FMLA outlines specific criteria for covered employers and eligible employees. It details leave entitlements, employee rights, and employer obligations. The act also interacts with other laws like ADA and workers' compensation, and includes enforcement mechanisms.

Overview of FMLA

• The Family and Medical Leave Act (FMLA) provides eligible employees with job-protected leave for qualifying family and medical reasons
• FMLA leave is unpaid, but employees may be able to use accrued paid leave concurrently
• The FMLA applies to covered employers and eligible employees must meet certain criteria to be entitled to leave

Covered employers

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• Private sector employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year
• Public agencies, including local, state, and federal employers, regardless of the number of employees
• Public or private elementary or secondary schools, regardless of the number of employees

Eligible employees

• Worked for the employer for at least 12 months (need not be consecutive)
• Worked at least 1,250 hours during the 12 months immediately preceding the start of the leave
• Employed at a worksite where the employer has at least 50 employees within 75 miles

FMLA leave entitlements

• Eligible employees are entitled to take job-protected leave for qualifying family and medical reasons
• Leave can be taken in a single block of time, on an intermittent basis, or on a reduced schedule basis

Up to 12 weeks

• Eligible employees may take up to 12 workweeks of FMLA leave in a 12-month period
• Employers may choose one of four methods for determining the 12-month period (calendar year, fixed 12-month period, 12-month period measured forward, or rolling 12-month period)

Qualifying reasons for leave

• Birth of a child and to bond with the newborn within one year of birth
• Placement of a child for adoption or foster care and to bond with the newly placed child within one year of placement
• To care for the employee's spouse, child, or parent who has a serious health condition
• For the employee's own serious health condition that makes the employee unable to perform the essential functions of their job

Military family leave provisions

• Qualifying exigency leave: up to 12 weeks of leave for certain qualifying exigencies related to a covered military member's active duty or call to active duty status
• Military caregiver leave: up to 26 weeks of leave in a single 12-month period to care for a covered servicemember with a serious injury or illness

Employee rights & protections

• The FMLA provides eligible employees with certain rights and protections related to their job, benefits, and protection from retaliation

Job restoration rights

• Upon return from FMLA leave, employees must be restored to their original job or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment
• Limited exceptions apply for "key employees" (salaried FMLA-eligible employees who are among the highest paid 10% of all employees within 75 miles of the worksite)

Continuation of benefits

• Group health insurance coverage must be maintained under the same terms and conditions as if the employee had not taken leave
• Employees may be required to continue paying their share of premium payments
• For other benefits (life insurance, disability insurance, etc.), the employer's established policies for other types of leave apply

Protection from retaliation

• Employers are prohibited from interfering with, restraining, or denying the exercise of FMLA rights
• Employers cannot discriminate or retaliate against employees for opposing unlawful practices under the FMLA or for participating in proceedings related to the FMLA

Employer obligations

• Covered employers have certain obligations under the FMLA to ensure compliance and protect employee rights

Posting FMLA notice

• Employers must prominently display a general notice about the FMLA (FMLA poster) in a conspicuous place, even if no employees are currently eligible for FMLA leave
• If a significant portion of the employer's workforce is not literate in English, the notice must be provided in a language in which employees are literate

Notification requirements

• Eligibility notice: employers must notify employees of their eligibility to take FMLA leave within five business days of an initial request for leave or when the employer acquires knowledge that leave may be for an FMLA-qualifying reason
• Rights and responsibilities notice: employers must provide a written notice detailing the specific expectations and obligations of the employee and explaining the consequences of failure to meet those obligations
• Designation notice: employers must inform employees in writing whether leave will be designated and counted as FMLA leave within five business days of having enough information to determine if leave is for an FMLA-qualifying reason

Recordkeeping requirements

• Employers must keep records related to FMLA leave for at least three years
• Records must include basic payroll and identifying employee data, dates FMLA leave is taken, hours of FMLA leave if taken in increments of less than one full day, copies of employee notices and documents describing employee benefits or policies and practices regarding paid and unpaid leave
• Medical records and documents related to medical certifications, recertifications, or medical histories of employees or their family members must be maintained as confidential medical records and kept separate from usual personnel files

FMLA leave process

• The FMLA leave process involves several steps, including employee notice, certification of the need for leave, and determining whether leave will be paid or unpaid

Employee notice obligations

• Foreseeable leave: employees must provide at least 30 days' advance notice when the need for FMLA leave is foreseeable (birth, placement for adoption or foster care, planned medical treatment)
• Unforeseeable leave: when 30 days' notice is not practicable (medical emergency), notice must be given as soon as practicable, generally within the time prescribed by the employer's usual and customary notice requirements

Certification of need for leave

• Employers may require employees to provide certification supporting the need for FMLA leave
• Certification requirements vary depending on the reason for leave (serious health condition of employee or family member, qualifying exigency, military caregiver leave)
• Employers may, at their own expense, require a second or third medical opinion if they doubt the validity of the certification for an employee's serious health condition

Substitution of paid leave

• FMLA leave is unpaid, but employees may choose, or employers may require employees, to substitute accrued paid leave for unpaid FMLA leave
• Substitution of paid sick or family leave is subject to the terms and conditions of the employer's normal leave policy
• If an employee does not choose to substitute accrued paid leave, the employer may require the employee to do so

Intermittent vs continuous leave

• FMLA leave may be taken intermittently or on a reduced leave schedule when medically necessary due to the serious health condition of the employee or covered family member, or for qualifying exigency leave
• Intermittent or reduced schedule leave for birth or placement for adoption or foster care can only be taken with the employer's approval
• Employees must make reasonable efforts to schedule planned medical treatments so as not to unduly disrupt the employer's operations

Interaction with other laws

• The FMLA interacts with several other laws that provide leave entitlements or protections for employees

FMLA vs ADA

• The Americans with Disabilities Act (ADA) provides protections for individuals with disabilities and may require employers to provide reasonable accommodations, which could include leave
• Leave as a reasonable accommodation under the ADA may be required even if an employee is not eligible for FMLA leave or has exhausted their FMLA entitlement
• Employers must consider each law separately and provide the greater benefit to the employee

FMLA vs workers' compensation

• Workers' compensation laws provide wage replacement and medical benefits to employees who are injured in the course and scope of employment
• FMLA leave and workers' compensation leave can run concurrently if the reason for the absence is due to a qualifying serious illness or injury under the FMLA
• Employers cannot require employees to take FMLA leave simply because they are receiving workers' compensation benefits

FMLA vs state leave laws

• Many states have their own family and medical leave laws that provide greater benefits than the FMLA
• When an employee is covered by both the FMLA and a state family and medical leave law, the employee is entitled to the greater benefit or more generous rights provided under the different laws
• Employers must comply with both federal and state law

Enforcement & remedies

• The FMLA is enforced by the U.S. Department of Labor's Wage and Hour Division, and employees have the right to file a complaint or bring a private lawsuit if their FMLA rights have been violated

Filing a complaint with DOL

• Employees can file a complaint with the Department of Labor's Wage and Hour Division if they believe their FMLA rights have been violated
• Complaints should be filed within a reasonable timeframe, typically two years from the last action which the employee believes was in violation of the FMLA
• The DOL will investigate the complaint and may seek relief on behalf of the employee, including reinstatement, lost wages, and other damages

Private lawsuits

• Employees have the right to bring a private civil action against an employer for FMLA violations
• Lawsuits must generally be filed within two years of the last action which the employee believes was in violation of the FMLA, or within three years if the violation was willful
• Employees are not required to file a complaint with the DOL before bringing a private lawsuit

Damages & other relief

• Employees who prevail in an FMLA lawsuit may be entitled to a variety of damages and other relief
• Damages may include lost wages, salary, benefits, or other compensation denied or lost as a result of the FMLA violation
• Equitable relief may include employment, reinstatement, or promotion
• Employees may also recover interest on lost wages, salary, benefits, or other compensation, as well as liquidated damages (an additional amount equal to the sum of the actual monetary losses) unless the employer proves it acted in good faith and had reasonable grounds to believe its actions did not violate the FMLA