Rights and Responsibilities Under the Family and Medical Leave Act

Introduction

The "traditional" model of the American family, with dad working and mom staying at home to raise the 2.2 children, is no longer the norm, if it ever was. Modern America has a growing number of single-parent families and two paycheck families, along with fathers who take a more active role in parenting responsibilities. In recognition of some of these changes, Congress passed the Family and Medical Leave Act of 1993 (FMLA). Although state law may provide for more expansive coverage, the FMLA establishes minimum federal standards governing unpaid leave for employees with health problems, sick family members, or who are giving birth to or adopting children.

Scope and Operation of the FMLA

The FMLA entitles covered employees up to 12 weeks of leave in every 12-month period. The purpose of this leave is to let employees handle important matters such as personal or family medical problems, pregnancy, or adoption. The employee's leave under the FMLA is unpaid, but the employee continues to receive health-care benefits as if still actively employed. At the end of the leave period, the employer must usually reinstate the employee in the same job or an "equivalent" position. An equivalent position is a job having the same or similar pay, hours, work performed, work conditions, job responsibilities, job security, and the like. The FMLA also provides that employees who take FMLA leave cannot be discriminated against or discharged for doing so, and it allows employees who have been discriminated against to bring suit for their lost wages and other damages.

The FMLA does not apply to all employers or all employees. The FMLA only covers employers with 50 or more workers, who have employed 50 or more workers for at least the past 20 weeks. It also applies to public agencies, regardless of the number of employees, and to elementary and secondary schools, both public and private. The FMLA only applies to employees who have worked for a covered employer for a minimum of 12 months, although these 12 months do not need to be consecutive. Additionally, the employee must have worked at least 1,250 hours for the employer during the previous 12 months and have worked at a site where the employer has 50 or more employees within a 75-mile radius.

If the employer and the employee are both covered, the FMLA provides several valid reasons a covered employee may take unpaid leave, including a serious health condition making the employee unable to perform his job, the need to care for a member of the employee's immediate family suffering from a serious health condition, the birth or adoption of a child, and the care of a newborn or newly adopted child. What constitutes a qualifying reason under the FMLA and how FMLA leave provisions are governed is determined both by general rules applicable to all FMLA leave, as well as by particular rules relating to particular reasons.

Generally, the FMLA requires an employee to give his employer 30 days' notice of his intention to take FMLA leave as well as the reason for the leave. There is no "magic language" the employee must use in notifying the employer, nor does the employee need to mention the FMLA by name. Instead, the notice must give the employer enough information to know the employee is requesting time off and why. This allows the employer to determine if the request qualifies under the FMLA and to allow time to replace the employee taking the leave. Sometimes, however, the need for FMLA leave arises suddenly, such as when the employee suffers an unexpected medical emergency. In such a case, the employee may take FMLA leave without prior notice, but the employee must give the employer such notice as is practicable.

A common qualifying reason for FMLA leave is a serious health condition suffered by either the employee or a member of the employee's family. The FMLA defines a "serious health condition" as an illness or injury that involves either inpatient care at a hospital or like facility or continuing treatment by a health-care provider. In the case of the employee, a serious health condition is one that renders him or her incapable of performing his or her job, whether because of the condition itself or because of the need to have it diagnosed or treated. To qualify as serious, the condition must last more than a few days, and treatment by a health-care provider is required. Examples of serious health conditions include heart attacks, strokes, and spinal injuries, although this is not a comprehensive list. Depending on the circumstances, even conditions as common as morning sickness can qualify as serious health conditions under the FMLA.

Although the FMLA does not require the employee taking FMLA leave for medical reasons to get a doctor's certificate outlining the problem, many states do. In the event of a question about the seriousness of the employee's condition, the FMLA allows an employer to request that the employee get a doctor's certificate if the employee is notified of this requirement beforehand. If the employer disputes a doctor's findings, it may require the employee to get a second, and even a third opinion at the employer's expense, from a doctor not previously affiliated with the employer. The doctor must determine that the employee cannot perform his or her job or that the requested leave is medically necessary; if the leave is not medically necessary, the employee does not have a serious heath condition under the FMLA.

Another common reason for an employee to take FMLA leave is the birth or adoption of a child and the need to care for the new child. If an employee takes FMLA leave for this reason, he or she is usually entitled to begin leave when the child is actually born or adopted, but leave may begin earlier if there is either a legitimate medical reason relating to the birth, or if the presence of the employee is required to complete the adoption process.

Although FMLA leave is unpaid, both the employer and the employee are allowed to coordinate the employee's FMLA leave with paid leave, such as vacation days and sick days. An employee may voluntarily elect to substitute paid vacation, personal or family leave days, or sick days for FMLA leave days if the reason the employee is taking FMLA leave would allow him or her to take those days as paid days off. An employer may also mandate that some of its employee's paid leave be credited against FMLA leave. However, an employer cannot force an employee to substitute paid leave, defined by the Fair Labor Standards Act as "compensatory time off" (basically, the employee's paid vacation), for FMLA leave.

Upon return to work, the employee must be reinstated by the employer to the same or a genuinely equivalent position. If the employee is not eligible for such a position because he or she needs to renew a license, pass a continuing education class, or the like, the employer must give the employee a reasonable opportunity to fulfill this requirement. The FMLA excepts from the reinstatement requirement certain "highly compensated employees" where reinstatement would cause the employer serious economic hardship provided the employer tells the employee he or she will not be reinstated after leave, and the employee does not return to work. Another exception is where the employer can show that the employee would have been fired even if the employee had not taken FMLA leave; in this situation, the employer does not have to reinstate the employee. This is called the "positive elimination defense," and it commonly arises when a position is eliminated. For example, if an employer closes a factory because business is bad, the employer would not have to reinstate an employee returning from FMLA leave. Other grounds for refusing reinstatement are dissatisfaction with the employee's job performance, excessive absenteeism, and the like, although this is much riskier for the employer. This is because the FMLA prohibits discriminating against an employee for taking FMLA leave, an employer who discharges an employee who is on FMLA leave, or recently returned from FMLA leave, must take special care to be able to justify the decision to fire the employee.

Finally, the FMLA places certain bookkeeping and administrative requirements on employers. The employer must decide how to measure the 12-month period used to determine how much leave an employee can take. For example, an employer may use a fiscal year, a calendar year, or measure from the date of the employee's hire, so long as the same rule applies to all employees. The employer may also require the employee on FMLA leave to periodically report in regarding his or her status and intent to return to work. The FMLA requires covered employers to post notices outlining employees' rights under the FMLA where employees are likely to see them and in a language they are likely to understand. If the employer has an employee manual, the manual should include the employer's rules regarding FMLA matters. Failure to inform employees of their rights under the FMLA can result in fines and the loss of the employer's right to enforce its rules regarding leave under the FMLA. Finally, the FMLA requires the employer to maintain certain minimum records regarding each employee, including name, address, wage, hours worked, and FMLA leave taken, to aid in the determination of whether an employee is eligible to take FMLA leave and how much he or she may take.

Conclusion

Congress's passage of the FMLA in 1993 recognized that changing conditions meant a new way had to be found to balance the demands of work and family. Through FMLA, Congress established a national standard of 12 weeks per year of unpaid leave for an employee facing important family problems. FMLA is designed to allow an employee to deal with these problems without cost to his or her employer and without detriment to his or her jobs. It is important for diligent employers and employees to understand which rights and responsibilities they each have under the FMLA regime.