FAMILY AND MEDICAL LEAVE ACT

The Family and Medical Leave Act (FMLA) provides employees who qualify with up to 12 work weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. It also requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. The employer can elect to use the calendar year, a fixed 12-month fiscal year, or a 12-month period prior to or after the commencement of leave as the 12-month period. The Act, which became effective on August 5, 1993, for most employers, is primarily administered and enforced by the U.S. Department of Labor's Employment Standards Division, Wage and Hour Division.

ELIGIBILITY FOR FMLA

To qualify for FMLA benefits, an employee must1) work for an employer subject to FMLA rules; 2) have worked for that employer for a total of 12 months; 3) have worked at least 1,250 hours over the previous 12 months; 4) 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. This latter stipulation exempts many small business owners from FMLA rules and guidelines.

But while FMLA does not apply to small businesses that employ fewer than 50 people, it does apply to small and mid-size companies that employed 50 or more employees in 20 or more work weeks in the current or preceding calendar year. FMLA also applies to all public agencies, including local, state, and federal employers; large companies; and school administrations.

LEAVE ENTITLEMENT There are several different situations under which employers subject to FMLA must grant eligible employees unpaid leave from work without penalty. Reasons include:

• Situations in which the employee is unable to work because of illness or other health difficulties.
• Placement with the employee or a child for adoption or foster care.
• Birth and care of the newborn child of the employee.
• Caring for an immediate family member with serious health difficulties (immediate family members are defined as spouse, child, or parent).

In addition, spouses employed by the same company or agency are jointly entitled to a combined total of 12 work weeks of family leave for the birth and care of a newborn child, for placement of a child for adoption or foster care, or to care for a parent suffering from a serious health condition.

Finally, depending on the circumstances, some employees may be able to take leave in blocks of time or by scaling back their normal work schedule. In addition, employers or employees may sometimes choose to use accrued paid leave to cover some or all of the FMLA leave.

ILLNESSES AND OTHER CONDITIONS COVERED UNDER FMLA The FMLA was written so that employees who have family members in "serious health condition"—or who themselves are in such condition—can use the law to protect their job during the time that they are on leave. The Department of Labor defines "serious health condition" as an illness, injury, impairment, or physical or mental conditions that involves any of the following:

• Any period of incapacity or treatment connected with overnight stays in a hospital or other residential medical care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care.
• Continuing treatment by a health care provider that includes any period of incapacity due to: 1) a health condition (including treatment of, or recovery from) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition; 2) pregnancy or prenatal care; 3) a chronic serious health condition which continues over an extended period of time, requires periodic visits to a doctor or other health care professional, and may involve occasional episodes of incapacity (diabetes, asthma); 4) permanent or long-term conditions for which treatment may not work (cancer, stroke); 5) absences to receive treatments for restorative surgery or for a condition which would likely result in incapacitation for more than three days if not treated (radiation or chemotherapy treatments for cancer).

EMPLOYER REQUIREMENTS UNDER FMLA

Employers who are subject to FMLA regulations must maintain group health insurance coverage for any employee taking FMLA leave whenever that employee already had that insurance. The employer is not allowed to make any changes in the terms of that insurance coverage, either. There are some situations, however, where an employer may be able to recover any insurance premiums that it paid out to maintain health coverage for an employee if that worker fails to return to work from FMLA leave.

In instances where the employee does return from FMLA leave, that employee is entitled to be restored to his or her original job, or to an equivalent job, complete with equivalent pay, benefits, and other terms of employment. Moreover, FMLA stipulates that an employee cannot lose any employment benefit that he or she earned prior to using FMLA leave once the employee returns to work. There are exceptions to the above rules, but they come into play only in extreme circumstances wherein returning an employee to his or her previous station will cause "substantial and grievous economic injury" to the business. Obviously, such circumstances arise only when the company is in deep financial jeopardy.

Employers who are subject to FMLA law are required to post notices that explain the Family and Medical Leave Act in the workplace. These notices are approved by the Secretary of Labor. Companies that willfully violate this requirement are subject to fines. This requirement is part of a general mandate that directs employers to inform employees of all pertinent aspects of FMLA, including employee responsibilities.

STEPS TO SECURING FMLA LEAVE

Employees who wish to take advantage of the Family and Medical Leave Act must adhere to certain steps so as to soften the impact on the businesses where they are employed. Workers using FMLA must first provide 30-day advance notice of their intention to take leave in all instances where the need is foreseeable. In addition, some employers require employees using FMLA to do some or all of the following:

• Provide medical certification supporting the need for leave.
• Provide second or third medical opinions (at the employer's expense)
• Give periodic recertification of health status.
• Provide periodic reports on employee status and intentions regarding returning to work.
• Adhere to limitations on intermittent leave.

In their article for Entrepreneur, Steven C. Bahls and Jane Easter Bahls admitted that adhering to the FMLA can be difficult for employers, but they also claimed that businesses benefit by retaining good employees. "Keeping a job open for months, tracking the employee's illness, determining if medical certification is adequate, keeping records on which absences are covered and which are not—clearly, it's not easy to administer an FMLA leave and avoid legal trouble," they wrote. "And there remains the possibility of abuse of the system. Still, try to keep in mind what your employees gain from knowing there's a good job waiting on the other side of their problems, and what your company gains by retaining a valued employee."

FURTHER READING:

Bahls, Steven C., and Jane Easter Bahls. "Statute of Liberty."

Entrepreneur. January 2001.

Compliance Guide to the Family and Medical Leave Act. U.S. Department of Labor, 1996.

The HR Focus Guide to the Family and Medical Leave Act. American Management Association, n.d.

SEE ALSO: Pregnancy in the Workplace