Employment Standards Administration
Wage and Hour Division
WH Publication 1421
June 1993
Compliance Guide to the Family and Medical Leave Act
Material contained in this publication is in the public domain and may be
reproduced, fully or partially, without permission of the
Federal Government. Source credit is requested but not required. Permission is
required only to reproduce any copyrighted
material contained herein.
This material will be made available to sensory impaired individuals upon
request.
Voice phone: 202- 219- 8743
TDD* phone: 1- 800- 326- 2577
*Telecommunications Device for the Deaf.
Compliance Guide to the Family and Medical Leave Act
The "Family and" Medical Leave Act (FMLA) became effective on
August 5, 1993. The Secretary of Labor issued
regulations to implement the FMLA.1 This "Guide to Compliance" begins by
summarizing those regulations, explaining the basic
provisions of the new law, and the rights and responsibilities of affected employers and
employees. After this summary of the
FMLA's requirements; specific questions are addressed. The information provided in
response to the questions posed below, or
the regulations themselves, will provide greater detail on how the law works.
1 See the Federal Register dated June 4, 1993, Vol 58, No. 106, pages 31794-
31839. Similar provisions also apply to most
federal and Congressional employees, which are administered by the U.S. Office of
Personnel Management (OPM) or the
Congress.
Summary
The Family and Medical Leave Act was enacted on February 5, 1993.
The new law is in effective on August 5, 1993, for most employers. If a collective
bargaining agreement (CBA) is in effect on that
date, the Act becomes effective on the expiration date of the CBA or February 5, 1994,
whichever is earlier. This delay in the
effective date applies only to employees covered by a CBA in effect on August 5, 1993,
and not - - for example - - to non-
bargaining unit employees.
The Wage and Hour Division of the U.S. Department of Labor's Employment
Standards Administration administers and
enforces FMLA for all private, State and local government employees, and some
federal employees.
FMLA entitles eligible employees to take up to 12 weeks of unpaid, job- protected
leave each year for specified family and
medical reasons. An eligible employee's right to FMLA leave begins on August 5, 1993.
Any leave taken before that date does
not count as FMLA leave. However, events qualifying under the Act for FMLA leave
purposes (e.g., the birth of a child)
occurring before August 5, 1993, still entitle eligible employees to the benefits of FMLA
on and after August 5, 1993.
The new law contains provisions relating to employer coverage; employee eligibility
for the benefits of the law; entitlement to
leave, maintenance of health benefits during leave, and job restoration after leave;
notice and certification of the need for FMLA
leave; and protections for employees who request or take FMLA leave. In addition, the
law includes certain employer
recordkeeping requirements.
Purposes of the FMLA
The FMLA allows employees to balance their work and family life by taking
reasonable unpaid leave for certain reasons. The
FMLA is intended to balance the demands of the workplace with the needs of families,
to promote the stability and economic
security of families, and to promote national interests in preserving family integrity. The
FMLA seeks to accomplish these
purposes in a manner that accommodates the legitimate interests of employers, and
which minimizes the potential for employment
discrimination on the basis of sex, while promoting equal employment opportunity for
men and women.
The enactment of the FMLA was predicated on two fundamental concerns - - the
needs of the U.S. workforce and the
development of high- performance organizations. Increasingly, American children and
growing numbers of the elderly are
dependent on working family members who spend long hours on the job. When family
emergencies arise, requiring employees to
attend to their seriously- ill children or parents, or to newly- born or adopted infants, or
even to their own serious illness, workers
need reassurance that they will not need to choose between their job security and
meeting their personal and family obligations or
tending to vital needs at home.
Employer Coverage
FMLA applies to all:
* public agencies, including State, local and federal
employers, and local education agencies (schools); and,
* private sector employers who employ 50 or more employees
for at least 20 workweeks in the current or preceding
calendar year and who are engaged in commerce or in any
industry or activity affecting commerce - - including joint
employers and successors of covered employers.
For FMLA purposes, most federal and Congressional employees are under the
jurisdiction of the U.S. Office of Personnel
Management (OPM) or the Congress.
Employee Eligibility
To be eligible for FMLA benefits, an employee must:
(1) work for a covered employer;
(2) have worked for the employer for at least a total of 12 months;
(3) have worked at least 1,250 hours over the prior 12 months; and,
(4) work at a location where at least 50 employees are employed by the employer
within 75 miles.
Leave Entitlement
A covered employer must grant an eligible employee up to a total of 12 workweeks
of unpaid leave during any 12- month period
for one or more of the following reasons:
* for the birth or placement of a child for adoption or
foster care;
* to care for an immediate family member (spouse, child, or
parent) with a serious health condition; or,
* to take medical leave when the employee is unable to work
because of a serious health condition.
Spouses employed by the same employer are jointly entitled to a combined total
of 12 workweeks of family leave for the birth or placement of a
child for adoption or foster care, and to care for parent (but not
a parent "in-law") who has a serious health condition.
Leave for birth or adoption (including foster care placement) must
conclude within 12 months of the birth or placement.
Intermittent Leave - - Under some circumstances, employees may take FMLA leave
intermittently - - which means taking leave
in blocks of time, or by reducing their normal weekly or daily work schedule.
Where FMLA leave is for birth or placement for adoption or foster care, use of
intermittent leave is subject to the employer's
approval.
FMLA leave may be taken intermittently whenever it is medically necessary to care
for a seriously ill family member, or because
the employee is seriously ill and unable to work. If the need for intermittent leave is
foreseeable based on planned medical
treatment, the employee is responsible for scheduling the treatment in a manner that
does not unduly disrupt the employer's
operations, subject to the approval of the health care provider.
In such cases, the employer may also transfer the employee temporarily to an
alternative job with equivalent pay and benefits that
better accommodates recurring periods of leave than the employee's regular job.
Substitution of Paid Leave - - Subject to certain conditions, employees or
employers may choose to use or require the use of
accrued paid leave (such as sick or vacation leave) to cover some or all of the
otherwise unpaid FMLA leave.
The employer is responsible for designating if paid leave used by an employee
counts as FMLA leave, based on information
provided by the employee. In no case can an employee's paid leave be credited as
FMLA leave after the leave has been
completed.
Serious Health Condition - - "Serious health condition" means an
illness, injury, impairment, or physical or mental condition that
involves:
* any period of incapacity or treatment connected with
inpatient care (i.e., an overnight stay) in a hospital,
hospice, or residential medical care facility;
* any period of incapacity requiring absence of more than
three calendar days from work, school, or other regular
daily activities that also involves continuing treatment
by (or under the supervision of) a health care provider;
or,
* continuing treatment by (or under the supervision of) a
health care provider for a chronic or long- term health
condition that is incurable or so serious that, if not
treated, would likely result in a period of incapacity of
more than three calendar days, and for prenatal care.
Health Care Provider - - Health care providers who qualify under the regulations to
provide certification of a serious health
condition for an employee or an immediate family member include:
* doctors of medicine or osteopathy authorized to practice
medicine or surgery (as appropriate) by the State in which
the doctor practices; or,
* podiatrists, dentists, clinical psychologists,
optometrists, and chiropractors (limited to treatment
consisting of manual manipulation of the spine to correct
a subluxation as demonstrated by X- ray to exist)
authorized to practice in the State and performing within
the scope of their practice under State law; or,
* nurse; practitioners and nurse- midwives authorized to
practice under State law and performing within the scope
of their practice as defined under State law; or,
* Christian Science practitioners listed with the First
Church of Christ, Scientist in Boston, Massachusetts.
Maintenance of Health Benefits
A covered employer is required to maintain group health insurance coverage for an
employee on FMLA leave whenever such
insurance was provided before the leave was taken, and on the same terms as if the
employee had continued to work.
Where appropriate, arrangements will need to be made for employees taking
unpaid FMLA leave to pay their share of health
insurance premiums while on leave. For example, if the group health plan involves co-
payments by the employer and the
employee, an employee on FMLA leave must continue making insurance premium
payments to maintain insurance coverage, as
must the employer. The employee and employer need to work out the method for the
employee to pay his; or her share of health
insurance premiums while on unpaid FMLA leave.
An employer's obligation to maintain health benefits under FMLA will stop if and
when an employee informs the employer of an
intent not to return to work at the end of the leave period, or if the employee fails to
return to work when the FMLA leave
entitlement is used up.
In some instances, the employer may recover premiums it paid to maintain health
insurance coverage for an employee who fails
to return to work from FMLA leave.
Other Benefits - - Certain types of earned benefits, such as seniority, need not
continue to accrue during periods of unpaid
FMLA leave. For other benefits, such as elected life insurance coverage, the employer
and the employee need to make
arrangements so that the benefits may be maintained during periods of unpaid FMLA
leave. Except for accrued or earned
benefits (such as seniority), the employee must be restored to the same benefits upon
return from FMLA leave as if the employee
had continued to work the entire FMLA leave period. Use of FMLA leave cannot result
in the loss of any benefit that accrued
before the employee's leave began. Accordingly, an FMLA leave period cannot be
counted as a break in service for purposes of
vesting or eligibility to participate in benefit programs.
Job Restoration
Upon return from FMLA leave, an employee must be restored to his or her original
job, or to an equivalent job with equivalent
pay, benefits, and other employment terms and conditions.
In addition, an employee's use of FMLA leave cannot result in the loss of any
employment benefit that the employee earned or
was entitled to before using FMLA leave.
"Key" Employee Exception - - Under specified and limited
circumstances where restoration to employment will cause substantial
and grievous economic injury to its operations, the employer may refuse to reinstate
certain highly- paid "key" employees after
using FMLA leave during which health benefits are maintained. In order to do so, the
employer must:
* notify the employee of his/her status as a "key" employee in response
to the employee's notice of intent to take FMLA leave;
* notify the employee as soon as the employer decides it will deny job restoration
and explain the reasons for this decision;
* offer the employee a reasonable opportunity to return to work from FMLA leave
after giving this notice; and,
* make a final determination as to whether reinstatement will be denied at the end
of the leave period if the employee then
requests restoration.
A "key" employee is a salaried "eligible" employee who is
among the highest paid ten percent of employees within 75 miles of the
work site.
Notice and Certification
Employees seeking to use FMLA leave may be required to provide:
* 30- day advance notice of the need to take FMLA leave when the need is
foreseeable;
* medical certifications supporting the need for leave due to a serious health
condition affecting the employee or an immediate
family member;
* second or third medical opinions and periodic recertification, at the employer's
expense;
* periodic reports during FMLA leave on the employee's status and intent to return
to work; and,
* a "fitness- for- duty" certification to return to work.
When leave is needed to care for an immediate family member or the employee's
own illness and is for planned medical
treatment, the employee must attempt to schedule treatment so that it will not unduly
disrupt the employer's operation.
Employer Notices - - Covered employers must post a notice approved by the
Secretary of Labor explaining rights and
responsibilities under FMLA. An employer that willfully violates this posting requirement
may be subject to a fine of up to $100
for each separate offense.
In addition, covered employers are obliged to provide information to their
employees about their rights and responsibilities under
FMLA, including specific information- in response to an employee's notice of the need
for FMLA leave - - regarding just what
will be required of the employee and what might happen in certain circumstances, such
as if the employee fails to return to work
from FMLA leave.
Unlawful Acts
FMLA makes it unlawful for any employer to interfere with, restrain, or deny the
exercise of any right provided by this law. It is
also unlawful for an employer to discharge or discriminate against any individual for
opposing any practice, or because of
involvement in any proceeding, related to FMLA.
Enforcement
FMLA will be enforced by the Wage and Hour Division of the U.S. Labor
Department's Employment Standards Administration.
This agency will investigate complaints of violations. If violations cannot be
satisfactorily resolved, the Department may bring
action in court to compel compliance.
An eligible employee may bring a private civil action against an employer for
violations.
Other Provisions
Special rules apply to employees of local education agencies. Generally, these
rules provide for FMLA leave to be taken in
blocks of time when the leave is needed intermittently or when leave is required near
the end of a school term (semester).
Salaried executive, administrative, and professional employees of covered
employers who meet the Fair Labor Standards Act
(FLSA) criteria for exemption from minimum wage and overtime under Regulations, 29
CFR Part 541, do not lose their FLSA-
exempt status by using any unpaid FMLA leave. This special exception to the
"salary basis" requirements for FLSA's exemption
extends only to "eligible" employees' use of leave required by FMLA;
The FMLA does not affect any other federal or State law which prohibits
discrimination. It does not supersede any State or local
law which provides more generous family or medical leave protection. Nor does it affect
an employer's obligation to provide
greater leave rights under a collective bargaining agreement or employment benefit
plan. The FMLA also encourages employers
to provide more generous leave rights.
Questions
Q: Does the law guarantee paid time off?.
No. FMLA leave is generally unpaid leave. However, in certain circumstances the
use of accrued paid leave - - such as vacation
or sick leave - - may be substituted for the unpaid leave required by the law.
Q. How much unpaid leave am I entitled to?
If you are an "eligible" employee of a covered employer, you are entitled
to 12 weeks of leave for certain family and medical
reasons during a 12- month period.
Q: Am I entitled to any paid leave while on FMLA leave?
The law permits you to substitute accrued paid leave under certain conditions, or
your employer may require you to substitute
paid leave.
Q: What if an employer already provides paid leave for the purposes covered by
FMLA?
FMLA is intended to encourage generous family and medical leave policies. For
this reason, the law does not diminish more
generous existing leave policies or laws, though employers are entitled to conform their
employment policies and practices with
the FMLA's requirements.
Q: Who is considered a "family member" for purposes of taking FMLA
leave?
An employee's spouse, son or daughter, and parents are immediate family
members for purposes of FMLA. The term "parent"
does not include a parent "inlaw."
Q: Does FMLA leave have to be taken in whole days or whole weeks, or in one
continuous block of time?
The FMLA permits leave for birth or placement for adoption or foster care to be
taken intermittently - - that is, in blocks of time
or by reducing the normal weekly or daily work schedule - - subject to approval by the
employer. Leave for a serious health
condition may be taken intermittently when "medically necessary.
Q: Is there a limit to the number of times FMLA leave can be taken in one
year?
No. An employee is entitled to take up to 12 weeks of leave in a 12- month period
for any of the family and medical reasons that
qualify for FMLA leave, without limitation.
Q: Can I take FMLA leave for visits to a therapist, if my doctor prescribes the
therapy?
Yes. FMLA permits you to take leave to receive "continuing treatment by a
health care provider," which can include recurring
absences for therapy treatments ordered by a doctor such as, for example, physical
therapy after a hospital stay, or for treatment
of severe arthritis. "Continuing treatment" includes a single visit W a health
care provider that results in a regimen of continuing
therapy under the supervision of the health care provider.
Q: Are there any employees who are not covered by this law?
Yes It's been estimated that about 60 percent of U.S. workers (and about 95
percent of U.S. employers) are not covered by the
law. To be eligible for FMLA benefits, an employee must: (1) work for a covered
employer; (2) have worked for the employer
for at least a total of 12 months; (3) have worked at least 1,250 hours over the prior 12
months; and, (4) work at a location
where at least 50 employees are employed by the employer within 75 miles.
Q: What about spouses who work for the same employer?
If a husband and wife work for the same employer, they may be limited to a
combined total of 12 weeks of FMLA leave in a
12- month period for the birth of a child, placement of a child for adoption or foster care,
or the care of a parent with a serious
health condition.
Q: What do I have to do to request FMLA leave from my employer?
You may be required to provide your employer with 30 days advance notice when
the need for leave is "foreseeable." When
such an advance notice is not possible or the need for the leave cannot be foreseen,
you must give your employer notice as soon
as "practicable."
Q: What kind of proof is required for my illness or that of an immediate family
member?
You may be required to submit documentation - - called a medical certification - -
from the health care provider who is treating
you or your immediate family member.
Q: Can my employer require additional proof?.
Your employer may require you to obtain additional medical certification from a
health care provider of the employer's choice,
and at the employer's expense.
Q: Can my employer require me to return to work before I exhaust my leave?
Subject to certain limitations, your employer may deny the continuation of FMLA
leave due to a serious health condition if you
fail to fulfill obligations to provide supporting medical certification as required by the
law.
Q: Are there any restrictions on how I spend my time while on leave?
Generally no, provided the leave is taken for a legitimate family or medical reason
and all appropriate notice and certification
requirements are met. However, employers with established policies regarding outside
employment while on paid or unpaid leave
may uniformly apply this policy to employees on FMLA leave.
Q: Can my employer make inquiries about my leave during my absence?
Yes, but only to you. Your employer may have reason to confirm whether the leave
needed or being taken qualifies for FMLA
purposes, and may require periodic reports on your status and intent to return to work
after leave. Also, if the employer has
reason to doubt the validity of a medical certification or wishes to obtain another
opinion, you may be required to obtain
additional medical certification at the employer's expense, or recertification during a
period of unpaid FMLA leave.
Q: Can my employer refuse to grant me FMLA leave?
If you are an "eligible" employee who has met FMLA's notice and
certification requirements (and you have not exhausted your
FMLA leave entitlement for the year) you may not be denied FMLA leave.
Q: Will I lose my job if I take FMLA leave?
Generally, no. It is unlawful for any employer to interfere with or restrain or deny the
exercise of any right provided under the
law. However, an employer may deny reinstatement to work - - but not the use of FMLA
leave or maintenance of health
insurance coverage during the leave - - to certain highly- paid salaried
("key") employees under certain circumstances.
Q. Are there other circumstances in which my employer can deny me my job after
using FMLA leave?
In addition to denying reinstatement in certain circumstances to "key"
employees, employers are not required to reinstate
employees who would have been laid off or otherwise had their employment terminated
had they continued to work during the
period leave was used (for example, employees hired for a specific term of employment
that expires). Also, under certain
circumstances, employers who advise employees experiencing a serious health
condition that they will require a medical
certificate of fitness for duty to return to work may deny reinstatement to an employee
who fails to provide such a certificate until
it is provided.
Q: Can my employer fire me for complaining about a violation of FMLA?
No, nor can the employer take any other adverse employment action on this basis~
It is unlawful for any employer to discharge
or otherwise discriminate against an employee for opposing a practice made unlawful
under FMLA.
Q: Will I be allowed to return to my same job after my leave?
Generally, yes. Ordinarily you will be restored to the same position you held prior to
the leave, with the same pay and benefits, if
the position remains available. You may be restored to an "equivalent
position" rather than the position you held before taking
leave if the previous position is not available. An equivalent position must have
equivalent pay, benefits, and terms and conditions
of employment as the original job.
Q: Do I lose all my benefits when I take unpaid FMLA leave?
Your employer is required to maintain health insurance coverage on the same
terms it was provided before the leave
commences, as if you continued to work.
In addition, the use of FMLA leave cannot result in the loss of any employment
benefit that accrued prior to the start of your
leave. Certain other earned benefits, such as seniority, do not need to continue to
accrue during a period of unpaid FMLA leave.
And for still other kinds of benefits, such as elected life insurance coverage,
arrangements may need to be made between you
and your employer so that they are continued during a period of FMLA leave. With the
sole exception of accrued or earned
benefits such as seniority, unless you elect otherwise, you must be restored to the
same benefits upon return from FMLA leave
as if you had continued to work during the period of the leave.
Q: Are there any differences in how the law applies to private and public sector
employees or employers?
The 50- employee coverage test does not apply to public sector employers or to
public or private education agencies (schools).
However, the public agency or school system must employ 50 employees within a 75-
mile area around the work site in order
for an employee to be "eligible" and entitled to FMLA benefits.
Q: Are there any special rules that apply to any groups of employees?
Special rules apply to instructional employees of "local educational
agencies," including public school boards and elementary and
secondary schools under their jurisdiction, and private elementary and secondary
schools. Generally, these rules provide for
FMLA leave to be taken in blocks of time when the leave is needed intermittently or is
required near the end of a school term.
Q: What if my employer does not know about the Family and Medical Leave
Act?
Your employer may contact the nearest office of the Wage and Hour Division,
Employment Standards Administration, of the
U.S. Department of Labor for information and guidance.
Q: What if I believe my employer is violating the law?
You have the choice of filing, or having another person file on
your behalf, a complaint with the Employment Standards Administration,
Wage and Hour Division, or you can elect to file a private lawsuit.
For more information, please contact the nearest office of the Wage and Hour
Division, listed in most telephone directories under
U.S. Government, Department of Labor, Employment Standards Administration.
Last modified: 09 July 2003
Human Resources Webmaster
|
