The Georgia Scroll
April 1998

The Family & Medical Leave Act: An Overview
By: Lisa L. Ballentine, Esquire
Smith, Gambrell & Russell, LLP

Background

On February 5, 1993, President Clinton signed into law the Family and Medical Leave Act. Ground breaking in substance and effect, the Act was the first federal law to provide employees with certain rights to take leave from work in order to care for themselves or a family member. The purpose of the Act was to allow employees to balance the demands of the workplace with that of family life by allowing eligible employees to take up to 12 work weeks of unpaid, job-protected leave in a calendar year for certain specified family and medical reasons. (1) Employers of 50 or more employees are covered by the Act and are required to provide eligible leave and to maintain eligible employees’ pre-existing group health insurance coverage during periods of FMLA leave, as well as to restore eligible employees to their same or an equivalent position at the conclusion of their FMLA leave. (2)

The law became effective on August 5, 1993, except where a collective bargaining agreement was in effect on that date, in which case the provisions took effect on the date the collective bargaining agreement terminated or on February 5, 1994, whichever date occurred earlier. (3) The Wage and Hour Division of the United States Department of Labor is the federal agency charged with administration and enforcement of the provisions and requirements of the FMLA. (4) The Department of Labor has an administrative mechanism set in place for such enforcement; however, employees are not required to make use of that administrative complaint system prior to filling an action in federal court for violations of the FMLA. In addition, the Department of Labor itself may also institute an action against errant employers for violations of the FMLA. Generally, remedies are limited to lost wages, which can be doubled if the employer fails to demonstrate that it acted in good faith, and attorneys’ fees. (Id)

Coverage

In general, the Family and Medical Leave Act allows "eligible" employees of a covered employer to take job-protected, unpaid leave or to substitute qualifying paid leave if the employee has earned or accrued it (sick leave, vacation, or personal leave), for up to 12 workweeks in any 12 months because of the birth of a child and to care for a newborn child, because of the placement of a child with the employee for adoption or foster care, because the employee is needed to care for a family member (child, spouse or parent) with a serious health condition or because the employee’s own serious health condition renders the employee unable to perform functions of his or her job. (5) Under certain circumstances, that leave may be taken on an intermittent basis rather that all at once, or the employee may work on a reduced leave schedule.

An employer is covered by the FMLA if it employees 50 or more employees at a single work site, or employees 50 or more employees at work sites within a 75-mile radius of each other. (6) Public agencies, and public and private elementary and secondary schools are covered employers without regard to the number of individuals employed. (Id) When counting the number of employees actually "employed", a private employer is covered if it maintained 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or preceding calendar year. (7) Employers should keep in mind that an employee whose name appears on the payroll will be considered employed each working day of the calendar week regardless of whether the individual actually received any compensation for that week. (Id) In addition, employees on paid or unpaid leave, any leaves of absence or disciplinary suspensions are counted as long as the employer has some reasonable expectation that the employee will later return to active employment. (Id) Both part-time and full-time employees are counted in order to determine an employer’s eligibility for coverage under the Act. (Id) In addition, temporary or leased employees may be included in an employer’s count of employees for FMLA coverage and consequently, any employer with temporary or leased employees should consult with its legal counsel to analyze issues of FMLA coverage.

Like the Fair Labor Standards Act, the FMLA defines an "employer" to include "any person who acts directly or indirectly in the interest of an employer to any of the employer’s employees". Consequently, a corporate officer, a manager or a supervisor can be held individually liable for any violations of the requirements of the Family and Medical Leave Act. (8)

In order to be eligible for leave, an employee must meet the following criteria:

(1) He or she must have been employed by the covered employer for at least twelve months, although those months need not have been consecutive;

(2) The employee must have been employed for at least 1,250 hours of service during the twelve-month period immediately preceding the commencement of the leave; and

(3) The employee must be employed at a work site or location where 50 or more employees are employed or 50 or more employees are employed within 75-miles of that work site. (9)

An employer should note that if an employee is maintained on the payroll for any part of the week, including any periods of paid or unpaid leave, those weeks count as a week of employment. (Id) Under the regulations implementing the FMLA, 52 weeks is deemed to be equal to twelve months for purposes of determining whether intermittent employment qualifies as "at least twelve months". (Id)

Serious Health Condition

A "serious health condition" that entitles an eligible employee to FMLA leave generally means some kind of illness, injury, impairment or physical and mental condition that involves inpatient care or any subsequent treatment in connection with inpatient care or continuing treatment by a health care provider involving some period of incapacity (inability to work, attend school or perform other regular daily activities due to the serious health condition involved, treatment for that health condition or recovery therefrom).(10) FMLA regulations specifically define "continuing treatment" and "incapacity" and the confines of this article do not allow for an in-depth discussion of those regulations or its legal counsel when attempting to determine whether an employee is entitled to FMLA leave.

The common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraines, routine dental and orthodontia, and periodontal disease are specifically listed by the regulations as examples of conditions that do not ordinarily meet the definition of a "serious health condition" under the FMLA unless complications arise. (Id) Substance abuse may be a serious health condition under the FMLA but FMLA leave can be taken only for treatment for substance abuse by a health care provider. (11) Absences because of an employee’s use of the substance involved rather than for treatment does not qualify for FMLA leave. (Id) Absences resulting from an incapacity under certain circumstances may qualify for FMLA leave even though the employee or immediate family member does not receive treatment from a health care provider during that absence. (12) Consequently, again, an employer would be well-advised to refer to the FMLA regulations or consult with its legal counsel in rendering a determination as to whether leave is covered under the Act.

Leave

Under the FMLA, the leave provided is unpaid. However, under certain circumstances, the FMLA permits an eligible employee to substitute paid leave for any portion or all of the FMLA leave and also allows the employer to require an employee to substitute accrued paid leave for qualifying FMLA leave. (13) What many employers fail to realize is that any paid leave that qualifies under the FMLA leave may run concurrently with the employee’s FMLA twelve-week leave entitlement. Consequently, a disability leave for the birth of a child under an employer’s temporary disability benefit plan, though not unpaid, may run concurrently for purposes of both the benefit plan and the FMLA leave entitlement. (Id). Likewise, an employee’s FMLA-leave entitlement may run concurrently with a workers’ compensation absence when the injury is one that meets the requirements of the FMLA leave for a serious health condition. (Id). If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave, the employee will remain entitled to all paid leave which is earned or accrued under the employer’s plan. (14) In addition, if an employee is out on a workers’ compensation leave of absence or any absence that would qualify under the FMLA leave and employer fails to designate the leave of absence as FMLA leave, the employee remains entitled to all or any portion of the 12 weeks of unpaid Family and Medical Leave accrued to the employee.

Consequently, many employers find that they will have an employee out on workers’ compensation leave of absence which has not been designated as Family and Medical Leave only to have the employee return to work and go out on Family and Medical Leave later on in that twelve-month period. In order to avoid such a situation, it is imperative that employers remain alert and vigilant with regard to the designation of FMLA leave. Under the law, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA leave and to give notice of that designation to the employee. (15) That designation must be based only on information received from the employee or the employee’s spokesperson. (Id) In any circumstance where an employer does not have adequate information concerning the nature of the leave in order to determine whether the leave qualifies under the FMLA, that employer should seek additional information from the employee or the employee’s representative in order to make the determination whether leave is potentially covered by the FMLA. (Id)

Notice

Generally, when the need for leave is foreseeable, an employee must give the employer 30 days’ notice of the need for FMLA leave. (16) If thirty days’ notice is not possible, notice must be given as soon as practicable based on all the facts and circumstances involved. (Id) Generally, leave taken by an employee may not be retroactively counted as FMLA leave. (17) This limitation underscores the need for employers to be aware of the leave in order to determine whether it can be designated as FMLA leave.

On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced or to an equivalent position with equivalent benefits, pay, working conditions, privileges, perquisites and status. (18) Generally, such a position must involve the same or substantially similar duties and responsibilities, which require substantially equivalent skill and effort, and offer the same or substantially similar responsibilities and authority. (Id) An employee on FMLA leave is also entitled to have health benefits maintained while on leave as if the employee had continued to work instead of taking leave. (Id)

Every employer covered by the FMLA is required to post and keep posted in its workplace a notice explaining the FMLA’s provision s and information for filing complaints of violations of the Act with the Wage and Hour Division. (19) In addition, if an FMLA-covered employer has any eligible employees and has a written manual, handbook, or policies, information concerning the FMLA, an employee’s obligations under the FMLA must be included in that handbook or other documents. (20)

Conclusion

The Family and Medical Leave Act of 1993, with the final regulations implementing that Act, constitute one of the most broad based and complex pieces of personnel law enacted, equaled only by the Americans with Disabilities Act and the Fair Labor Standards Act. This article attempted to discuss and highlight certain provisions of the Act. Obviously, due to the Act’s depth and scope, a complete analysis would fill a textbook. Recently, President Clinton has proposed amendments to the FMLA which would have the Act apply to employers with 30 or more employees, as opposed to 50 or more employees. In addition, President Clinton has suggested that a 24-hour parental leave requirement be included in the Act to allow parents to attend events, functions, or meetings at a child’s school. To date, those amendments have not passed Congress but if implemented, FMLA coverage will greatly expand. In addition, many states and municipalities have their own laws that provide family and medical leave rights to employees which may differ substantially from the rights offered under the FMLA. Consequently, employers should take whatever steps are necessary in order to determine whether they are covered by federal or state family and medical leave requirements and if so, to ensure that they are in compliance with the federal, as well as any state, laws or regulations concerning family and medical leave. n

Endnotes

 1. 29 C.F.R.- § 825.100-101.
 2. 29 C.F.R.- § 825.100 (b); 29 C.F.R.- § 825.104 (a).
 3. 29 C.F.R.- § 825.102 (a).
 4. 29 C.F.R.- § 825.400-401.
 5. 29 C.F.R.- § 825.100 (a).
 6. 29 C.F.R.- § 825.104 (a)
 7. 29 C.F.R.- § 825.105 (b)-(f).
 8. 29 C.F.R.- § 825.104 (d).
 9. 29 C.F.R.- § 825.110 (a)-(b).
10. 29 C.F.R.- § 825.114
11. 29 C.F.R.- § 825.114 (d).
12. 29 C.F.R.- § 825.114 (e).
13. 29 C.F.R.- § 825.207 (a)-(d).
14. 29 C.F.R.- § 825.207 (f)-(g).
15. 29 C.F.R.- § 825.208 (a).
16. 29 C.F.R.- § 825.302 (a)-(b).
17. 29 C.F.R.- § 825.208.
18. 29 C.F.R.- § 825.214-215.
19. 29 C.F.R.- § 825.300 (a).
20. 29 C.F.R.- § 825.301 (a)(1)

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Last modified: June 22, 2001