Family and Medical Leave Act (FMLA)

The FMLA is one of the most complicated employment laws to administer. In addition to the federal law, there are federal regulations that do more to construct the maze than to clear it. Pair that with your state’s family and medical leave act, workers’ compensation laws, the federal Americans with Disabilities Act (ADA), and your company’s own leave policy, and you may feel as though you are stuck in a legal labyrinth with no relief in sight.

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The FMLA applies to any employer in the private sector with 50 or more employees within 75 miles of a work site. The law covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). Those employers don't need to meet the 50-employee test.

The Act allows eligible employees of covered employers to take up to 12 weeks (including intermittent leave) of unpaid, job-protected leave annually for certain family and medical reasons, including

• the birth or adoption of a child,
• caring for a seriously ill child, spouse, or parent, or
• the employee's own serious health condition.

Amendments to the FMLA also grant additional leave to employees who have family members in the military. These two categories of FMLA leave include:

• leave during family member's active duty -- employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces may take up to 12 weeks of FMLA leave yearly when they experience a "qualifying exigency," and
• injured servicemember family leave -- employees who are the spouse, parent, child, or next of kin of a servicemember who incurred a serious injury or illness on active duty in the Armed Forces may take up to 26 weeks of leave to care for the injured servicemember in one 12-month period (in combination with regular FMLA leave).

Eligible employees include those who have worked for at least 12 months and at least 1,250 hours during the last 12-month period. You are prohibited from: interfering with anyone exercising his rights under the Act; taking any adverse action against an employee who tries to exercise his rights; or retaliating because an employee files a complaint, gives information, or testifies in relation to a complaint.

Many states also have employment laws regarding family and medical leave that may give employees even more rights than the ones granted in the FMLA.

You must keep accurate records pertaining to the leave and post a notice of employees' rights under the FMLA. Furthermore, the FMLA requires you to maintain the employee's group health benefits while on leave on the same terms that you provided them when the employee was working. You may require an employee to provide certification from his health care provider to support a request for FMLA leave.

Leave taken under the FMLA is job-protected, which means that employees can't be fired while on leave or retaliated against for requesting leave and must be given the same job or a similar job when they return. Employees or the U.S. Department of Labor can sue the employer for lost wages, benefits, reinstatement, attorneys' fees, and liquidated damages for willful violations.

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Related articles on FMLA from the State Employment Law Letters
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HR Tools for FMLA

• HR Executive Special Report - FMLA, ADA, and Workers' Comp: Navigating the Treacherous Triangle (available for purchase by nonsubscribers)
  
• Sample Policy - Sick Leave
• Sample Policy - Family and Medical Leave
• Forms - FMLA