By Brad Ryder
The Family and Medical Leave Act (“FMLA”) allows an “eligible employee” of an “employer” to take up to 12 weeks of unpaid leave during a 12-month period. For the FMLA to apply, certain conditions must be met:
Employer
- A private-sector employer must have 50 or more employees within a 75-mile radius of the employee’s worksite. Remote work is determined by the employee’s assigned worksite (office location), not the employee’s remote work location.
- The “50 or more employees” requirement is based on 20 or more workweeks in the current or previous year (same standard as Title VII of the Civil Rights Act of 1964).
- Public agencies, including federal, state, and local government employers, regardless of the number of employees, qualify as “employers.”
NOTE: At least one federal appellate court has held that the Eleventh Amendment to the United States Constitution bars certain claims against state government employers.
- Local educational agencies, including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees, are covered under the FMLA.
- In certain instances, the total number of employees of related companies may be aggregated to meet the “50 or more employees” requirement.
- The definition of “employer” includes “any person who acts, directly or indirectly, in the interest of an employer.”
Eligible Employee
- The employee must have been employed at least 12 months (does not have to be consecutive).
- The employee must also have worked at least 1,250 hours in the last 12 months.
Entitlement to Leave
- Allows for up to 12 weeks of unpaid leave per year (can be intermittent).
- Leave permitted for:
- An employee with a “serious health condition.”
- An employee who needs to provide care to a family member (spouse, child, or parent) with a serious health condition. This does not include siblings, in-laws, or grandparents.
- The birth or adoption of a child (limited to a total of 12 weeks combined, if the husband and the wife are employed by the same employer).
- Care for the employee’s parent with a serious health condition (also limited to a total of 12 combined weeks, if the husband and the wife are employed by the same employer).
- Care for a family member who has suffered a serious injury while on active duty in the military (up to 26 weeks of leave).
- The employee must provide the employer with at least 30-days’ advance notice, if possible. If such notice is not possible, then the employee must provide such notice as soon as is possible and practical.
- In requesting leave, the employee is not required to mention the FMLA, but must specify a qualifying reason or need for the requested leave.
Additional Considerations
- A covered employer is required to display a poster that summarizes the major provisions of the FMLA. The poster prepared by the Department of Labor can be accessed by clicking on this link: https://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.
- Upon receiving notice from an employee for FMLA leave, an employer may request medical certification from the employee’s health care provider to verify the need for medical leave.
- The employee’s health insurance benefits must remain the same during the period of leave.
- Upon return to work, the employee must be restored either to the same position maintained immediately prior to taking FMLA leave or an equivalent position with the same pay, benefits, and other terms and conditions of employment.
- The employer cannot discriminate or retaliate against an employee for having exercised or attempted to exercise his or her rights under the FMLA.
- A violation can result in an award of back pay, front pay, liquidated damages, interest, attorneys’ fees, and costs. The FMLA does not allow for damages for emotional distress or punitive damages.
- The employee may have additional rights under applicable state law.
- The United States Department of Labor, Wage & Hour Division, is responsible for administering and enforcing the FMLA for most employers.
Employers must be familiar with their rights and responsibilities under the FMLA. This includes having a uniformly applied system for ensuring compliance. The failure to do so could result in significant potential liability not only for the company, but also for those supervisors and managers who are responsible for making employment-related decisions on behalf of the company.
If your business has questions about the Family and Medical Leave Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, non-compete, non-solicitation, or non-disclosure agreements, or other employment-related issues, feel free to contact me at (256) 534-3288 or brad@ryderlaw.com.
This information is not intended to provide legal advice, and no legal or business decision should be based on its content. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers. Read full disclaimer.
