The federal Family Medical Leave Act of 1993 (FMLA) has now been around long enough for most employers affected by it to be totally familiar with it. But like most other enactments that are administered by the U.S. Department of Labor (DOL), there are all kinds of technical rules and requirements that many employers don’t grasp. Many of the concepts being presented in this article were derived from the DOL’s web site. Because the DOL administers and enforces a number of federal laws, some Web surfing is necessary, but not too very much. If after reading this brief summary, you have a question that is not answered here, try that web site.
The FMLA went into effect on August 5, 1993. Like other federal laws that protect workers, a notice is required to be posted in a place where all workers can see it. The FMLA applies to all employers who employ 50 or more employees within a 75 mile radius of the primary site of employment. To qualify, an employee must have been employed for one year, and have worked at least 1250 hours. Thus, many part-time employees are covered.
There must be a serious medical or mental condition that requires in- or out-patient treatment by a physician for a minimum of 72 hours. It includes child birth and adoptions. It applies to the attendance of close family members when they are unable to tend to themselves. It is limited to 12 weeks, but may be taken on an intermittent basis.
Federal regulations require that employers with employee handbooks include a statement of the employees' rights and obligations under the Act it, along with a copy of the employer's leave policy. Employers without handbooks must provide employees with a written notice of their rights and obligations under the Act whenever an employee requests leave under the Act. The Act essentially imposes the obligation on the employer to ensure that employees are properly advised of the availability of such leave, how they should go about applying for it, properly classifying the leave as FMLA leave, thereafter protecting the employee’s job during the leave, and ensuring that retaliation does not occur.
Having said that, it has been my observation that retaliation does in fact occur in this and other anti-discrimination laws because there is a natural tendency to react against those who make our work place more difficult. Even though workers are protected for asserting claims and complaints made in good faith, some supervisors, managers and even coworkers who are affected by them are usually far from happy. It’s human nature, so claimants must be careful not to feed the fire and increase their visibility. At the same time, they need to be alert to punitive actions and seek help either internally or externally should that occur.
The FMLA is more technical and laced with regulations and requirements than the other employee protection statutes. And it is more burdensome to employers because the responsibility is on the employer to properly characterize the nature of the leave. If they deny FMLA leave when it is warranted, they face liability. If the employer requires excessive justification or details, they can also be liable. If the affected employee is punished in any way (e.g., marked down, criticized, denied an opportunity or punished due to attendance issues relating to FMLA leave) there is liability. That is possible if the employer requires medical certification of the medical or mental condition more often than is allowed (usually no more frequently than once every thirty days for the same condition).
A "serious health condition" under the Act is meant to cover conditions or illnesses requiring inpatient care or absences on a recurring basis for more than a few days for recovery or treatment. The term does not cover short-term conditions generally covered by a sick leave policy or voluntary or cosmetic treatments which are not medically necessary unless inpatient hospital care is required. Prenatal care and routine examinations are explicitly excluded.
The granting of intermittent leave is required when leave is taken for the employee's own serious health condition or for the care of a seriously ill family member. The DOL regulations provide for no minimum leave duration. In order to accommodate an intermittent leave schedule, the employer may transfer an employee to an "alternative position" with no limitation and no requirement of the employee's consent to such a transfer. The employer can even choose to transfer the employee to a part-time position, but the employee must receive an equivalent hourly rate and proportionate benefits. Also, the job adjustment cannot be punitive, demeaning or otherwise significantly adverse without the appearance of retaliation arising.
An employee may elect, or an employer may require, the employee to substitute any accrued paid vacation, personal leave or other paid leave for any portion of the 12-week period when the employee is on leave because of the birth or adoption of a child, or in order to care for a spouse, child or parent.
But once the first day after the 12 weeks of leave occurs, all protection under the FMLA ceases. Then there may be a question of whether the Americans with Disabilities Act applies, but even under the ADA, regular attendance is considered an essential element of most jobs. The law is very beneficial, but it does have limits.
Robert G. Walker, Jr.
Attorney at Law
April 2, 2007
