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 protected].
