FMLA: Federal

Authors: Sofija Anderson, Michelle Barrett Falconer, Alexis C. Knapp, Casey Kurtz, Judith A. Paulson, Mark T. Phillis, Barbara Rittinger Rigo, Jean L. Schmidt, Terri M. Solomon and Susan A. P. Woodhouse, Littler

Summary

• The Family and Medical Leave Act (FMLA) became effective in 1993. The law's stated purpose is to help employees balance their work and family responsibilities by taking reasonable unpaid leave for certain family and medical reasons, and to promote equal employment opportunity for men and women. See The Family and Medical Leave Act.
• The FMLA requires a covered employer to provide 12 workweeks of leave during an applicable leave year to an eligible employee for the following reasons: the employee's inability to work due to a serious health condition; to care for an immediate family member with a serious health condition; the birth, adoption or foster care of the employee's child; and to address a military exigency arising from a family member's military duty or call to military duty. See Qualifying Reasons for Leave; Designating, Calculating and Tracking Leave Requests.
• A covered employer must also provide 26 workweeks of leave during an applicable leave year for an eligible employee to care for a military servicemember with a serious injury or illness. See Qualifying Reasons for Leave; Designating, Calculating and Tracking Leave Requests.
• An employer covered by the FMLA includes a private employer with 50 or more employees, public agencies, public school boards and public and private elementary and secondary schools. A covered employer's managers also may be considered an employer under the FMLA. See FMLA Employer Coverage.
• An employer may be covered by the FMLA as a result of a relationship it has with another employer (or former employer). These situations include joint employer, integrated employer and successor employer relationships. See FMLA Employer Coverage.
• The FMLA imposes various notice obligations on an employee, including the requirement that he or she provide enough information for the employer to determine that the absence may be for an FMLA-qualifying reason. An employee also has an obligation to cooperate when the employer makes reasonable inquiries aimed at determining whether or not the FMLA applies. See Receiving and Reviewing Employee Requests for FMLA Leave.
• The FMLA includes a three-prong test for determining whether an employee is eligible for leave. The three prongs involve how long the employee has been employed by the employer, how many hours the employee has worked during the 12 months preceding the requested leave and how many employees are employed at the relevant worksite. See Determining Employee Eligibility for FMLA Leave.
• For certain types of FMLA leave, spouses who work for the same employer may be limited to a combined total of leave that is equivalent to the entitlement one of them otherwise would have received. See Qualifying Reasons for Leave; Designating, Calculating and Tracking Leave Requests.
• An employer is required to provide a general notice of the FMLA's provisions to its employees displaying a workplace poster, as well as by incorporating the posting into any written policies the employer provides to employees regarding leaves and/or benefits. See Preparing for FMLA Requests.
• An employer should consider creating a detailed FMLA policy in order to communicate employee leave entitlements and obligations, as well as the various ways the employer has exercised its discretion with regard to FMLA implementation. See Creating an FMLA Policy and/or Other Written Guidance.
• An employer may require an employee requesting FMLA leave to present an appropriate certification of the underlying facts that form the basis of the need for the leave. Generally speaking, an employer may require certification of an employee's need for FMLA leave because of the serious health condition of the employee or the employee's family member, the serious injury or illness of a covered military servicemember or a qualifying military exigency. See Requesting Certification of the Need for Leave.
• In addition to general notice requirements, the FMLA imposes several other notice obligations on an employer, including requirements to provide eligibility notices, rights and responsibilities notices and designation notices. See Designating, Calculating and Tracking Leave Requests.
• An employer may choose one of four leave years by which it will measure all employees' use of FMLA leave (excluding leave to care for a covered servicemember). The methods include: the calendar year, a fixed leave year, the 12-month period measured forward from the beginning date of leave and a rolling 12-month period measured backward from the date the employee uses any FMLA leave. See Designating, Calculating and Tracking Leave Requests.
• Intermittent or reduced schedule FMLA leave may be taken for both planned medical treatment and unanticipated medical treatment or medical issues. For example, an employee may need intermittent leave due to a flare-up of a chronic medical condition or to go to doctor appointments or receive chemotherapy treatments. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
• It is important for an employer to scrutinize a medical certification submitted by an employee in support of intermittent FMLA leave, in part to ensure that it specifies (if possible) the expected frequency and duration of the employee's need for intermittent leave. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
• The FMLA includes special rules for tracking intermittent and reduced schedule leave, which involve an assessment of each employee's normal or average workweek, including any mandatory overtime hours. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
• In certain limited circumstances, an employer can require an employee returning from intermittent and reduced schedule FMLA leave to provide a fitness-for-duty certification. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
• An employer often perceives that an employee is abusing intermittent FMLA leave. There are several strategies an employer can employ in an effort to combat the abuse of intermittent leave. See Administering and Processing Intermittent and Reduced Schedule Leave Requests; Curbing FMLA Fraud and Abuse.
• An employer has several obligations to an employee who uses FMLA leave, including the obligations to maintain the employee's health benefits during leave, to follow certain rules regarding other employee benefits and compensation, and to reinstate the employee to his or her same position (or an equivalent position) upon return from FMLA leave. See Employer Obligations When Employee Out on Leave.
• If an employee fails to return to work after unpaid FMLA leave has been exhausted or expires, the employer may recover its share of health plan premiums paid during the unpaid FMLA leave, except under certain limited circumstances. See Employer Obligations When Employee Out on Leave.
• If an employer provides a new health plan/benefits or changes its health plans/benefits while an employee is on FMLA leave, the employee is entitled to the new or changed plan/benefits, and the FMLA imposes certain notice obligations on an employer in such situations. See Employer Obligations When Employee Out on Leave.
• The taking of FMLA leave cannot result in the loss of any employment benefit (including non-health benefits) that an employee accrued before the leave began. See Employer Obligations When Employee Out on Leave.
• FMLA leave is generally unpaid. However, an employer may be permitted to require employees to use paid time off benefits or it may permit employees to choose whether or not they will use paid time off benefits. See Compensation While on FMLA Leave.
• The FMLA protects employees from discrimination or retaliation based on the exercising of FMLA rights. Therefore, an employer cannot use an employee's use of FMLA leave as a factor in deciding to take an adverse employment action against the employee. See Terminating or Taking Otherwise Negative Action Against Employees on Leave; Actions Prohibited by the FMLA.
• Upon return from an FMLA leave, an employee is entitled to be reinstated to the employee's original job or to an equivalent job. For a different job to be considered equivalent, it must be virtually identical to the original job in terms of pay, benefits and other employment terms and conditions. See Reinstating Employees Returning from FMLA Leave.
• Certain key employees of an employer may be denied reinstatement after FMLA leave in certain circumstances, provided that the employer follows specific notice and procedural requirements in connection with the employee's request for leave. See Reinstating Employees Returning from FMLA Leave.
• Reinstatement from FMLA leave also may be denied in other limited circumstances, including situations in which the employee would not have remained employed even if FMLA leave had not been taken. See Reinstating Employees Returning from FMLA Leave.
• The obligations imposed on an employer by the FMLA intersect and/or run concurrently with numerous obligations set forth in separate but related laws, including (but not limited to) the Americans with Disabilities Act, workers' compensation laws, the Fair Labor Standards Act, the Pregnancy Discrimination Act, the Uniformed Services Employment and Reemployment Rights Act, the Employee Retirement Income Security Act, the Consolidated Omnibus Budget Reconciliation Act, the Health Insurance Portability and Accountability Act and various state laws. Therefore, an employer must be aware of the impact of such laws on its administration of FMLA leave. See The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight.
• The FMLA requires that an employer make, keep and preserve certain records concerning compliance with the FMLA. See FMLA Recordkeeping Requirements.
• Certain information regarding an employee's FMLA leave may be maintained in the employee's personnel file. However, any medical information concerning the employee or the employee's family that is gathered through the FMLA process must be maintained and kept in separate medical files. See FMLA Recordkeeping Requirements.
• The FMLA forbids interference with an employee's rights under the law and with legal proceedings relating to an employee's FMLA rights. An employer may not deny employees their rights under the FMLA, or terminate or in any other way discriminate against any person, whether or not an employee, for opposing or complaining about any violation of the FMLA. See Actions Prohibited by the FMLA.
• If an employer is deemed to have violated the FMLA, potential remedies include monetary and equitable relief. Liquidated (double) damages may be available to the employee if the employer's violations of the FMLA are deemed willful. See Enforcement Rights.