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FMLA - Family and Medical Leave Act Law and Regulations
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New FMLA regulations were issued Nov. 14, 2008 by the U.S. Department of Labor (DOL) and the regulations went into effect on January 16, 2009. The new Family and Medical Leave Act regulations allow employers more control over when employees can take qualified family and medical leave. The new FMLA regulations cover the leave benefits for familes of members of the armed services. Military caregiver leave applies to family members of seriously injured or ill service members. Qualified exigency leave applies to family members of National Guard members and Reservists who have been called to service.
These are the first significant revisions to the FMLA regulations since the family and medical leave law was enacted 15 years ago and will affect all employers subject to the FMLA.
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See the entire final regulations issued by the DOL
The FMLA is one of the most complicated employment laws for employers 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 state family and medical leave laws, workers’ compensation laws, the federal Americans with Disabilities Act (ADA), and a company’s own employee leave policy, and employers may feel as though they are stuck in a legal labyrinth with no relief in sight.
The FMLA applies to any employer in the private sector with 50 or more employees within 75 miles of a work site. Joint employers and some employers with common management or ownership also may be covered by FMLA. 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.
Audio Conferences: Migraines, ADA, and FMLA: Legal and Medical Answers for HR and FMLA, ADA, and Workers' Comp Overlap: Overcoming New Compliance Conflicts
FMLA leave - What is it and what is covered?
The FMLA 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 eligible employees who have covered family members in the military. These two categories of FMLA leave include:
- Qualifying exigency family leave -- employees who have a spouse, parent, or child who is a Reservist or National Guard member and 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,” as defined in revised FMLA regulations and related to the call-up; and
- Military caregiver family leave -- employees who are the spouse, parent, child, or next of kin of a servicemember who suffered a serious injury or illness on active duty in the Armed Forces may take up to 26 weeks of leave to care for the servicemember in a single12-month period (in combination with regular FMLA leave).
Audio Conference : FMLA Leave for Military Families: New Rules, New Calendar, New Challenges
Which employees are eligible for FMLA leave?
Eligible employees for family and medical leave under the FMLA include those who have worked for at least 12 months and at least 1,250 hours during the last 12-month period. Employers are prohibited from: interfering with a worker 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.
What is a serious health condition?
One key concept under FMLA is the serious health condition, which can be defined in six different ways. A common definition involves three consecutive, full calendar days of incapacity, along with two visits to a health care provider for treatment within 30 days of the onset of incapacity. The first visit must be made in the first seven days. No illness or injury is automatically disqualified as a serious health condition; if a condition meets a definition, it can be a serious health condition, even though it probably wouldn’t be a serious health condition the vast majority of the time.
Notification requirements under the FMLA
There are very specific notice requirements for employees wishing to take FMLA leave as well as for employers in informing employees of their FMLA rights and in responding to their requests for leave. An underlying principle is that employees must give their employers as much notice of the need to take leave as is possible and practicable, considering all the facts and circumstances. More notice is required if the leave is more foreseeable (for childbirth or elective surgery, for example). Employees generally must follow their employer’s usual and customary procedures for reporting absences and leaves, and if they want to substitute paid leave for unpaid FMLA leave, they must follow procedures for obtaining the paid leave.
The prior, so-called two-day rule, which some believe allowed employees to take up to two days to give notice of the need for leave even when they could have given notice earlier, no longer applies. If employers don’t give proper notice, they may be held liable for interfering with an employee’s FMLA rights or for other reasons, and they may have to compensate the employee, but they won’t have to categorically increase the employee’s FMLA entitlement beyond the statutory entitlement (a practice the U.S. Supreme Court invalidated a few years back).
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Medical certification and record keeping
Employers may require medical certification of serious health conditions for family and medical leave under the FMLA, authenticate and clarify certifications, and ensure that the employee has furnished a complete certification. Provided they have given employees proper notice and specific information, employers also may require employees to provide fitness-for-duty certifications before returning to work from leaves, including intermittent leave when safety is an issue. There are limits on how often the employer may request this information.
Employers must keep accurate records pertaining to the leave and either physically or electronically post a notice of employees’ rights under the FMLA so that the information is accessible to both employees and job applicants. Furthermore, the FMLA requires employers to maintain the employee’s group health benefits while on leave on the same terms that it provided them when the employee was working.
Leave taken under the FMLA is job-protected, which means that employees must be given the same job or an equivalent job when they return. Employees or the DOL can sue the employer for lost wages, benefits, reinstatement, attorneys' fees, and liquidated damages for willful violations.
This is a very general overview, highlighting some of the major FMLA provisions. More may apply to an organization's particular situation, so employers consult with experienced employment counsel if they have questions. Many states also have employment laws regarding family and medical leave that may give employees greater rights than those granted in the FMLA, so employers should be be mindful of their duties under state law.
State-by-state comparison of 50 employment laws in all 50 states
Related articles on the Family and Medical Leave Act (FMLA) featured in HR Hero Line, HR News, and the Employment Law Post
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(IllnoisEmployment Law Letter, January 2010) - Pending Federal Legislation Would Create New Leave Mandates for Employers
(Utah Employment Law Letter, January 2010) - Worker Hands Employer Tough FMLA, ADA Case
(Arizona Employment Law Letter, December 2009) - Calculating the FMLA's 1,250-Hour Mark
(Pennsylvania Employment Law Letter, December 2009) - Deterring Intermittent FMLA Leave Abuse
(Federal Employment Law Insider, November 2009) - Managing Employee Health Insurance Premiums under Revised FMLA Regulations
(Georgia Employment Law Letter, October 2009) - Employees Have a Duty to Reveal Serious Health Conditions under FMLA
(Missouri Employment Law Letter, October 2009) - Can an Employer Deny FMLA Leave After Mistakenly Telling Employee He is Eligible?
(Tennessee Employment Law Letter, September 2009) - What to Do When Contagious Illnesses Comes to Work
(Mississippi Employment Law Letter, September 2009) - FMLA Leave: Military Caregiver Leave
(Federal Employment Law Insider, September 2009) - Military FMLA Leave: Qualifying Exigency Leave
(Federal Employment Law Insider, August 2009) - Employer May Be Liable for Actions Taken Against Alcoholic Employee
(Oklahoma Employment Law Letter, August 2009) - Employers Should Prepare in Case Swine Flu Returns this Fall
(Kentucky Employment Law Letter, August 2009) - EEOC Guidance, Best Practices for Working Caregivers
(Oklahoma Employment Law Letter , July 2009 - Seventh Circuit OK's Firing for Failure to Sign Improvement Plan
(Illinois Employment Law Letter, June 2009) - Legislation Introduced to Revise the FMLA
(Georgia Employment Law Letter, June 2009) - When Are Chiropractors 'Health Care Providers' under the FMLA?
(Indiana Employment Law Letter, May 2009) - New FMLA Regulations: Holidays, Joint Employers, Pregnancy and More
(Kentucky Employment Law Letter, February 2009) - Top Employment Issues for States in 2009 Part 2: Family and Medical Leave, Discrimination, Minimum Wage, and Safety
(Employers State Law Alert, February 2009) - Are Your Policies Compliant with the New FMLA Regulations?
(Texas Employment Law Letter, February 2009) - How Can Employers Avoid Legal Issues When Firing Employees?
(Arkansas Employment Law Letter, January 2009) - Obama Will Bring Change for Employers
(New York Employment Law Letter, January 2009) - Changes in Employment Law and the Workplace under Obama and New Congress
(Alabama Employment Law Letter, January 2009) - 10 Key Changes in New FMLA Regulations
(Federal Employment Law Insider, November 2008) - FMLA Leave for Military Family Members
(HR Hot Topics ) - 'Willful' Violations under FMLA Clarified
(Colorado Employment Law Letter, July 2008 - What's an FMLA 'Qualifying Exigency'?
(New Mexico Employment Law Letter, June 2008) - Attacking Motherhood and Apple Pie
(Alabama Employment Law Letter, May 2008) - Employers May Challenge Suspicious FMLA Leave Requests
(Tennessee Employment Law Letter, February 2008) - EEOC Guidance, Best Practices for Working Caregivers
(Oklahoma Employment Law Letter, August 2007) - What To Do When the FMLA Lights Come Up
(Alabama Employment Law Letter, June 2007) - Family Responsibility Discrimination
(North Dakota Employment Law Letter, May 2007)
- Sample Policy - Sick Leave
- Sample Policy - Family and Medical Leave
- Forms - FMLA
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