Enacted in 1993, the intent of the Family Medical Leave Act (FMLA) is to prevent employees from having to choose between their jobs and their families. The FMLA applies to private sector employers who employed 50 or more employees in 20 or more work weeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce. The FMLA also applies to public agencies, including state and local government employers, regardless of the number of employees.
“The FMLA ensures the employee continuation of group benefits during the period of the leave and assures the employee a return to the same or similar job,” says Nancy Conrad, an employment law attorney in the Labor and Employment Law Practice Group at White and Williams LLP.
Smart Business spoke with Conrad about the FMLA and how employers should navigate the law.
Who is eligible for FMLA benefits?
The employee must work for a covered employer for a total of 12 months; have worked at least 1,250 hours over the previous 12 months; and work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.
What kind of leave is an employee entitled to take?
A covered employer must grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month period for one or more of the following reasons: for the birth and care of the newborn child of the employee; for placement with the employee of a son or daughter for adoption or foster care; to care for an immediate family member (spouse, child or parent) with a serious health condition; or to take medical leave when the employee is unable to work because of a serious health condition.
Must an employer provide a reduced schedule under the FMLA?
Under certain circumstances, employees may take FMLA leave intermittently meaning they may take leave in blocks of time, or by reducing their normal weekly or daily work schedule whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work. Intermittent leave for birth and care or placement for adoption or foster care is subject to the employer’s approval.
What certification must an employee submit to qualify for the leave?
Employees requesting FMLA leave are required to provide 30-day advance notice when the need is foreseeable and notice is practical. Employers may also require employees to provide medical certification, second or third medical opinions (at the employer’s expense), periodic recertification, and periodic reports during the leave regarding the employee’s status and intent to return to work.
How should employers inform employees of their rights under the FMLA?
Under penalty of fines, covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. Employers can obtain a sample notice from the U.S. Department of Labor (WH Publication 1420). Covered employers must provide specific written information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave. This information can be included in employee handbooks or other written materials, including collective bargaining agreements.
Covered employers must also provide written notice designating the leave as FMLA leave and detailing specific expectations and obligations of an employee who is exercising his/her FMLA entitlements. Employers may use the U.S. Department of Labor’s form ‘Employer Response to Employee Request for Family or Medical Leave’ (Optional Form WH-381) to meet this requirement.
Must an employer hold a job for an employee on FMLA?
Following FMLA leave, an employee must be returned to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a no-fault attendance policy.
Additionally, under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly paid key employees after using FMLA leave during which health coverage was maintained.
NANCY CONRAD is an employment law attorney in the Labor and Employment Law Practice Group at White and Williams LLP. Reach her at (610) 782-4909 or email@example.com.