This month marks the twentieth anniversary of the passage of the federal Family and Medical Leave Act (FMLA) of 1993. FMLA requires large employers to grant eligible employees time off to respond to a broad range of medical conditions that they or their immediate family members may suffer. Since 1993, the law has been amended and expanded a number of times, with the Department of Labor’s Wage and Hour Division (WHD) revising its regulations to incorporate and apply these changing requirements. For example, effective March 8, WHD has revised rules providing protections for National Guard and Reserve troops subject to deployments, and for airline flight crews.
Who Qualifies, And What Protections Does FMLA Provide?
FMLA does not protect all employees. Its protections are available only to longer term employees of larger employers. It applies to private and public sector employers with 50 or more employees. To be eligible for benefits, an individual employee must have been employed with the employer for at least 12 months and have worked at least 1,250 hours in the preceding 12 months, and the employer must have at least 50 employees at that location or within 75 miles of that location.
Subject employers must provide an eligible employee with up to 12 work weeks of unpaid leave during any 12 month period for the following:
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Birth, adoption, or initiation of foster care of a child
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Care of a child, spouse, or parent due to a serious medical condition
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The employee’s own “serious health condition”
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Any “qualifying exigency” arising because a spouse, child or parent is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a “contingency operation.”
An employee returning from FMLA leave is entitled to return to his or her former position or an equivalent, unless unable to perform that job (e.g., because of ongoing limitations), or the position has been eliminated in the interim for unrelated reasons and no equivalent exists. Equivalence includes equivalent employment benefits, pay, and other terms of employment. This may require a case-specific analysis.
How Do Employers Incorporate FMLA Into Their Labor Policies?
WHD has incorporated into its FMLA regulations many definitions and concepts both from the Fair Labor Standards Act (FLSA; which WHD also administers) and from Title VII of the Civil Rights Act of 1964 (national anti-discrimination statute administered by the Equal Employment Opportunity Commission). Employers subject to FMLA must evaluate which employees and which leaves are eligible for FMLA, and must notify eligible employees of their rights.
Best practice is to compile these compliance elements into a leave policy. Policies can continue to apply general employment and discipline policies to employees on FMLA leave, up to and including termination for cause (e.g., based on information unearthed during an employee’s leave). Employers may also take reasonable measures to prevent abuse of FMLA leave rights. For example, the U.S. Supreme Court let stand a decision allowing an employer to make random telephone calls to an employee’s home during FMLA leave, when that employee had longstanding (ab)use of sick leave and had already been placed on the employer’s “Sick Abuse List,” and then to follow its policy to impose three days of unpaid suspension when the employee was found not to be home (Callison v. Philadelphia).
What About State Laws?
Many states have their own family leave laws, often with expanded provisions. For example, Connecticut allows employees to take a maximum of 16 weeks of family leave following the birth or adoption of a child, or if the employee or a child has a serious health condition. As another example, Minnesota requires all employers (not just those with 50 or more employees), to provide employees up to six weeks of unpaid parental leave in any two years.
Implementation Checklist
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Has your organization evaluated its roster of full-time and part-time employees to determine whether family and medical leave laws apply?
- Does FMLA apply (nationwide)?
- Do state laws apply to any of its facilities?
- Which employees are eligible under FMLA and/or state laws?
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Has your organization promulgated policies, for identifying eligible employees, and offering them FMLA and/or state-mandated leaves for qualifying leaves?
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Has your organization promulgated policies making equivalent positions available to employees returning from leave?
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Does your organization provide formal notice to employees of FMLA and state laws, and of eligible employees’ rights under applicable law(s)?
Where Can I go For More Information?
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WHD maintains information regarding FMLA here
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To check for analogous state laws:
- WHD provides links for some states on its website
- The National Conference of State Legislatures also provides links, at www.ncsl.org/Portals/1/Documents/employ/StateFamilyandMedicalLeaveLaws.pdf
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products,including Workplace Violence Prevention: A Practical Guide to Security on the Job,Securities Law and Directors' and Officers' Liability.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com.