Family and Medical Leave Act (FMLA) – Background, Key Provisions & Recent Changes

• By: Staff Editor
• Date: July 01, 2009

Background

The United States had no national family and medical leave legislation till 1993. Some employees had access to leave through union contracts, employer policies, or state statutes, but coverage provided under these provisions was rarely as comprehensive as coverage provided under the proposed Family and Medical Leave Act (FMLA).
 

The reasons for the enactment of the FMLA included:

• increase in the number of single parent households
• increase in number of two parent households where both parents work
• lack of employment policies accommodating working parents, forcing individuals to choose between job security and parenting
• inadequate job security for employees with serious health conditions that prevent them from working for temporary periods
• employment standards that apply to one gender only that might lead to gender discrimination by employers

The purpose of the FMLA included:

• To balance the demands of the workplace with the needs of families
• To entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition
• To accommodate legitimate interests of employers
• To minimize potential of gender-based employment discrimination
• To promote goal of equal employment opportunity for women and men

FMLA Titles and Sections:

FMLA Provisions:

Coverage

Employers:

The FMLA’s provisions apply to an employer who is:

• A state, local, or federal governmental agency; or
• A private business engaged in, or affecting, interstate commerce, that employed fifty or more employees in twenty or more weeks in the current or prior calendar year. An employee is defined as everyone on the employer’s payroll, including part-time employees, employees on approved leave, and leased or temporary employees.

Employees:

The Federal FMLA rules that an employee who works for a covered employer is eligible for leave if he or she worked for the employer for at least twelve months, and for at least 1,250 hours over the twelve months immediately preceding the need for leave.  The employee must also work at a worksite in the United States, or a U.S. territory, at which the employer has at least fifty employees within seventy-five miles.

Entitlement

Under the Act, most Federal employees are entitled to a total of up to 12 workweeks of unpaid leave during any 12-month period for the following purposes:

• the birth of a son or daughter of the employee and the care of such son or daughter;
• the placement of a son or daughter with the employee for adoption or foster care;
•  the care of spouse, son, daughter, or parent of the employee who has a serious health condition; or
• a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her positions.

Under certain conditions, an employee may use the 12 weeks of FMLA leave intermittently.  An employee may elect to substitute annual leave and/or sick leave, consistent with current laws and OPM's regulations for using annual and sick leave, for any unpaid leave under the FMLA. 

Job Benefits and Protection

Equivalent benefits: The Act rules that when an employee returns from FMLA leave, he or she must be returned to the same position or an equivalent position with equivalent benefits, pay, status and other terms and conditions of employment.
Health benefits: Employees who take FMLA leave are entitled to maintain health benefits coverage and may pay the employee share of the premiums on a current basis or pay upon return to work.

Advance Notice

According to the FMLA, an employee must provide notice of his or her intent to take family and medical leave not less than 30 days before leave is to begin or, in emergencies, as soon as is practicable.

Medical Certification

The Act rules that an agency may request medical certification for FMLA leave taken to care for an employee's spouse, son, daughter, or parent who has a serious health condition or for the serious health condition of the employee.

Non-eligible workers and types of leave

The federal FMLA does not apply to:

• workers in businesses with fewer than 50 employees (this threshold does not apply to public agency employers and local educational agencies);
• part-time workers who have worked less than 1,250 hours within the 12 months preceding the leave and a paid vacation;
• workers who need time off to care for seriously ill elderly relatives or pets;
• workers who need time off to recover from short-term or common illness like  cold, or to care for a family member with a short-term illness; and
• workers who need time off for routine medical care, such as check-ups.

State-level FMLA benefits

Some states have enacted laws that mandate additional family and medical leave for workers by dropping the employer threshold and expanding the definition of family. For instance, in certain states like Maine, Minnesota, etc., the FMLA applies to employers with less than 50 employees.

Further, across the states, relations like domestic partner and domestic partner’s child, civil union partner, parent-in-law, grandparent, grandparent-in-law or an employee's reciprocal beneficiary, sibling, step parent etc., are considered family, thereby increasing the scope and coverage of the Act.

Increasing the uses for FMLA leave

FMLA leave can be used for a worker’s serious health condition, the serious health condition of a family member, or upon the arrival of a new child. State FMLA laws and the new military family provisions of the FMLA have broadened these categories:
 

• Connecticut: Organ or bone marrow donor.
• Maine: Organ donor; death of employee’s family member if that family member is a service member killed while on active duty.
• Oregon: Care of for the non-serious injury or illness of a child that requires home care.
   

Recent changes to the FMLA:

Expands definition of “Family”:

The federal FMLA only applies to immediate family—parent, spouse, and child. The Department of Labor on June 22, 2010 clarified the definition of "son and daughter" under the FMLA "to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship" and specifying that "an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child."

Covers military personnel:

Family members of military personnel can now take up to 26 weeks of unpaid leave to care for service members suffering from serious injury or illness. The law also entitles an eligible employee who is the spouse, son, daughter, or parent of a service member who is on active duty (or has been notified that he or she will be called to active duty in the near future) to 12 weeks of FMLA leave. This leave would be available in cases of any "qualifying exigency."

Defines “Serious Health Condition”

The Department of Labor made the following changes to define what precisely constitutes a “serious health condition”:

•  “Treatment” by a health care provider requires an in-person visit within seven days of the first day of incapacity.
•  “Health care provider” can include a physician assistant who is licensed and performing within the scope of his or her practice as defined by state law.
•  Where an employee seeks to be covered under the definition of “incapacity for more than three days,” which requires “continuing treatment by a health care provider,” the two treatments must be within 30 days absent extenuating circumstances outside the employee’s control.
• Where an employee seeks to be covered under the definition of “chronic serious health condition,” which requires periodic visits for treatment by a health care provider, the employee must have treatment at least two times a year.

Advance notice from employees:

• Employees have to give notice 30 days in advance if their need for FMLA leave is foreseeable.
• An employee who has already used FMLA leave for the same reason must refer either to that reason or to the need for FMLA leave when giving notice.
• An employee who wants to substitute paid leave available under a company policy for unpaid FMLA leave must meet all of the requirements of company policy. Previous rules allowed employees to take paid leave as long as they gave the notice required by the FMLA, no matter what the employer's policy required.

Employer notices:

Changes to the FMLA now require employers to issue the following notices:

• General notice that is accessible to all employees and leave applicants
• Eligibility notice – provided to employees who request FMLA leave
• Rights and responsibilities notice which gives details about FMLA leave and the documents the employer may require.
• Designation notice which either designates time off as FMLA leave or notifies employees that time off does not come under FMLA leave.
   

Certifications:

• Employers can contact health care providers to authenticate certification for serious health conditions
• Employers can request recertification every six months for an ongoing health condition
• Employers can ask employees to go through a fitness to perform duty examination that specifically addresses the employee's ability to perform the essential functions of the job. But the employer has to inform the employee of this requirement and provide a list of essential job functions with the designation notice.
   

Additional Resources:

• Read the full Family and Medical Leave Act here
• Need to learn more about the FMLA and how it affects your HR processes? Then attend any of the following ComplianceOnline webinars:
  • Understanding FMLA: Family and Medical Leave Act
  • The Employee Misconduct Boot Camp: the Psychology and Law of Managing Difficult Behavior
  • Pregnancy in the Workplace: Strategies to Protect Your Organization from Pregnancy Discrimination Claims