1973 Family and Medical Leave Act

I. Introduction

Congress enacted The Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et seq. (the "FMLA") in response to increasing numbers of single-parent households, workplace leave policies that in practice tended to discriminate against women, and increasing workplace demands on employees. Before the FMLA was enacted, employees were often forced to choose between family responsibilities and their jobs.

Under the FMLA, eligible employees can take up to twelve weeks of unpaid leave within a designated twelve month period (usually a calendar year) to obtain medical care for themselves or provide it to certain family members, if those employees work for an employer covered under the Act.

II. Who is a Covered Employer?

An employer is covered by the FMLA if it:

1. employs 50 or more employees for each working day for twenty or more workweeks in the current or prior calendar year;
2. at a single facility or at multiple facilities located within 75 miles’ driving distance of each other.

Public agencies are covered employers under the FMLA regardless of the number of employees they have.

III. Which Employees Are Eligible To Take FMLA Leave?

An employee of a covered employer is eligible to take FMLA leave when he/she:

1. has been employed for at least 12 months by the covered employer; and
2. has worked 1,250 hours or more during the 12 month period immediately preceding the commencement of the leave.

Whether an employee has been employed by a covered employer for twelve months and worked the required 1250 hours must be decided at the time the leave commences.

IV. When is an Employee Entitled to take FMLA Leave?

An employee may take FMLA leave for any one of four qualifying events:

1. The birth and care of a newborn child;
2. The adoption or placement of a foster care child;
3. The serious health condition of the employee; or
4. The serious health condition of an employee's qualifying family member (e.g., spouse, son, daughter or parent).

Leave for the birth or placement of a child may be taken only within twelve months of the child’s birth or placement.

A "serious health condition" is defined as an illness, injury, impairment, or physical or mental condition that involves either:

5. Inpatient care in a hospital, hospice, or residential medical care facility for one or more nights;
6. A period of incapacity requiring absence from work of more than three consecutive calendar days and continuing treatment by or under the supervision of a health care provider;
7. Any period of incapacity due to pregnancy, or for prenatal care;
8. Any period of incapacity or treatment for such incapacity caused by a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.);
9. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, severe stroke, terminal illness); or
10. Multiple treatments by or under the supervision of a health care provider for non-chronic, restorative or preventive purposes for a condition that, if not treated, would likely cause incapacity for three days or more. Examples would include treatments for cancer (chemotherapy, radiation, etc.), serious arthritis (physical therapy), and kidney disease (dialysis).

“Qualifying family members,” for whose serious medical condition an employee may seek leave, are the employee’s spouse, parent, son or daughter. A "spouse" is a husband or wife as recognized under State law. An employee may not use FMLA leave to care for a significant other. A "parent" under the FMLA is either the biological parent or an individual who acted as the employee’s parent or guardian when the employee was a child. Parents "in law" are not covered and grandparents ordinarily are not covered. A "son or daughter" includes a biological, adopted or foster child, stepchild, legal ward or child of person standing in loco parentis, who is either under 18 years of age or is over 18 but "incapable of self-care because of a physical or mental disability." An employee may not use FMLA leave to care for the child of a significant other or partner unless the employee is acting as the child’s parent.

V. What is an Eligible Employee’s FMLA Leave Entitlement?

An employee is entitled to up to twelve weeks of unpaid, job protected leave during any twelve month period of time.

A. Does An Employee Retain Benefits While On FMLA Leave?

While an employee is on an FMLA leave, the employer must maintain the employee's coverage under any "group health plan" at the same levels and conditions of coverage as the employee would receive if he/she worked throughout the leave.

B. Is An Employee Reinstated To His/Her Job Upon Returning to Work?

When an employee returns from FMLA leave, he/she is entitled to be returned to the same position he/she had when FMLA leave began, or to another position with equivalent pay, benefits and other employment terms and conditions. There are two exceptions to this requirement: (1) if the employee is a “key” employee (typically an officer in the highest 10% of work force based upon pay) and reinstatement would cause the employer substantial and grievous economic injury; or (2) if the employee’s position has been eliminated for reasons unrelated to the FMLA leave. If an employee is unable to perform any of the essential functions of the job upon return from an FMLA leave, the employee has no right to get his/her job back.

C. Employer FMLA Leave Designation

The employer is responsible for designating leave (paid or unpaid) as FMLA leave, and providing the appropriate notice to the employee of such leave, either in its policy statements (such as an employee handbook) or in an individual notification letter issued to the employee requesting FMLA leave.

D. Employee Notice Obligations

An employee giving notice of the need for FMLA leave must provide the employer with an explanation as to the reason the leave is needed. If such information is not provided, FMLA leave may be denied. An employee requesting or giving notice of the need for FMLA leave is not required to specifically assert FMLA rights, or to even mention the FMLA, in order to satisfy his or her notice obligations. When the need for FMLA leave is foreseeable (e.g., for a birth, placement for adoption or foster care, or for treatment of a serious health condition of the employee or qualifying family member), an employee must provide an employer with at least 30 days advance notice of the leave. If advance notice is not possible, the employee must notify the employer as soon as he/she can.

VI. Can An Employer Require Medical Certification Of The Leave-Causing Condition?

Employers can require employees to submit a medical certification concerning any serious health condition necessitating a request for FMLA leave. After an employee provides notice of the need for FMLA leave, the employer is permitted to inquire further to ensure that the condition in question is FMLA-qualifying. An employer also may require the employee to submit a medical certification form completed by the employee's treating health care provider.

The certification must contain the following information: (1) the date on which the serious health condition commenced; (2) its probable duration; (3) "appropriate medical facts" about the condition; and (4) a statement that the employee is unable to perform the function(s) of his/her position, or that the employee is needed to care for a qualifying family member, and an estimate of the amount of time needed.

VII. What Remedies Are Available to an Employee Whose FMLA Rights Have Been Violated?

An employee may assert a claim for violation of the FMLA by either registering a claim with the U.S. Department of Labor, or by filing a private lawsuit in federal or state court. If the employee chooses to pursue an administrative claim, he/she can still file suit while the administrative claim is pending. However, if the Department of Labor chooses to prosecute the claim in court, the employee's private cause of action automatically terminates.

A. What Damages May an Employee Recover?

Employers who violate the FMLA may be liable for a covered employee's back wages, benefits, or other compensation lost due to the violation. If no wages were lost, the employee may recover actual damages incurred due to the violation (such as daycare expenses), up to a sum equal to twelve weeks of wages or salary. Interest on the amount is also recoverable, as are reasonable attorney's fees, expert's fees, and costs. The court may also award equitable relief, such as the employee’s reinstatement. In addition, the employee is entitled to be awarded liquidated damages, an amount equal to the actual damages recovered.

B. What is the Statute of Limitations for Asserting an FMLA Claim?

An FMLA claim must be filed with the Department of Labor or in federal or state court within two years from the date of the violation, unless the employee can show that the employer's violation was willful (i.e., knowing and intentional), in which case the statute of limitations is three years.