The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) allows employees who have met minimum service requirements (12 months employed by the company with 1,250 hours of service in the preceding 12 months) to take up to 12 weeks of unpaid leave for:
  1. A serious health condition
  2. To care for a family member with a serious health condition
  3. The birth of a child or
  4. The placement of a child for adoption or foster care.

Although there is no complete list of medical conditions which are considered serious health conditions, there are 6 general categories which must be evaluated to determine if an employee (or their family member) has a serious health condition. This determination is made by the employee (or family member’s) doctor on the “Certification of Health Care Provider” form. Reasons #3 and #4 are considered family leave; therefore, there is no medical issue attached to the request for leave and the certification form does not need to be completed, although the employee must usually provide at least 30 days advance notice before the leave is to begin.

The FMLA requires employers to:
  1. Allow their eligible employees to take up to 12 weeks of unpaid leave for the above circumstances;
  2. Provide continued health benefits during leave;
  3. Restore employees to the same position upon return from leave (or to a position with the same pay, benefits and terms and conditions of employment); and
  4. Appropriately notify employees of their rights and responsibilities under the Act.
Scheduling: Employees can take 12 weeks of leave in
  1. One block of time;
  2. In smaller blocks as needed (intermittent leave); or
  3. On a reduced work schedule (i.e. part-time for 24 weeks).

Managers may need to rearrange the duties of other workers or hire a temporary to cover the responsibilities of a worker on FMLA leave. With few exceptions, it is important not to interfere with an employee’s right to use FMLA leave and be reinstated upon completion of the leave. The employer can expect reasonable notice and may exercise some control in cases of intermittent or reduced work schedule leave, however.

Recording FMLA Leave: It is the employer’s responsibility to designate leave as FMLA leave, whether the employee mentions FMLA or not. The employee must be promptly notified that leave will be counted as FMLA leave in order to limit the total amount of time the employee can be away from work. The employee has the responsibility to notify the employer of the need for leave, and to provide enough information so the employer can determine if the leave qualifies under FMLA.

Reinstatement: When an employee is ready to return from leave, as long as it has not exceeded the 12 week FMLA maximum, they must be restored to an equivalent position with equivalent pay, benefits and terms and conditions of employment (such as work schedule, eligibility for promotions, bonuses, etc.). In most cases, therefore, employers will restore the employee to their original position.

Penalties for Non-Compliance

Employees may recover back pay and benefits with interest, as well as reinstatement and/or promotion. Attorney’s fees and costs may also be awarded.

In the absence of FMLA, state family and medical leave laws and state temporary disability requirements, small companies have several options:
  1. Provide no paid leave or guarantee of reinstatement following absence for family or medical reasons;
  2. Provide paid leave for medically necessary absences only (pregnancy must be treated like any other medical absence);
  3. Provide unpaid maternity/paternity leave; or
  4. Some combination of the above.

Note: The March 2002 Supreme Court decision in Ragsdale v Wolverine Worldwide Inc. clarified the employer’s responsibilities in providing advance notice that leave may be counted as FMLA leave. Although the lack of advance notice does not entitle employees to more than 12 weeks of FMLA leave, employers should make a good faith effort to provide advance notice, and have clear and well communicated policies about what types of leave constitute FMLA Leave.

Source: Society for Human Resource Management