The FMLA allows covered employees to take up to 12 weeks (480 hours) of UNPAID leave if they have a serious health condition or need to care for a family member with such a condition, and requires their reinstatement to a substantially equivalent job on their return.
What Companies Are Covered:
The Act applies to any company which has 50 or more employees. However, an employee is excluded from coverage under the Act (even if he works for an employer with over 50 employees total) if the employee works at a job site where there are less than 50 employee and the company also has less than 50 employees within a seventy-five mile radius of the job site.
What Employees Are Eligible:
Employees are eligible for leave if they have worked for the company for at least 12 months, and have put in at least 1,250 hours of work in the prior 12 months. In other words, an employee is not eligible for leave in the first year of employment. Likewise, an employee is not eligible for leave if the employee works only half-time, or if the employee only recently has returned after an extended layoff or prior leave (so that the employee has not worked 1,250 hours in the prior 12 months).
Reasons for Leave:
An employee who meets the minimum service requirements is eligible for up to 12 weeks of unpaid leave in any 12-month period due to (1) the birth of a child (within the preceding 12 months); (2) the adoption of a child (within the preceding 12 months); (3) the care of a parent, spouse or child with a serious health condition; (4) to receive care for the employee’s own serious health condition.
Definitions:
The Act defines a “parent” as being either a biological parent or a person who stood “in loco parentis” to the employee (presumably including stepparents or even grandparents under some circumstances). A “child” is a biological, adopted, foster, or step child (or other child for whom the employee is guardian or stands in loco parentis. The child must be under the age of 18, or, if over 18, must have a serious disability which renders the child incapable of self care.
The Act defines a “serious health condition” as a serious condition (mental or physical) which requires inpatient care or continuing outpatient care by a healthcare provider. The Act itself contemplates that the employee will need to miss work on a recurring basis for more than a few days, and the legislative history reflects that the Act was not intended to apply to short-term conditions (i.e, kids with measles). However, the Regulations issued by the Department of Labor take a very broad view of what is a serious health condition, and consider a “serious health condition” to include any illness which disables the employee (or relative) for more than three calendar days. The Regs also treat subsequent follow-up care for the same condition as falling within the Act. In addition, in the case of chronic health conditions (such as asthma, migraines, diabetes, etc.), the Act considers all such conditions to be “serious health conditions” and no minimum calendar days of absence are required for FMLA to apply. All absences due to pregnancy also are automatically considered to be for a “serious health condition”, including doctor visits for prenatal care. See 29 CFR § 825.114.
Where the leave is desired to care for a relative, the physical or mental condition of the relative must render that person unable to conduct their regular daily activities. Notably, if the relative only needs emotional support, the Regs permit the absence to be covered (assuming a doctor is willing to certify that the patient needs this support).
Documentation:
An employer is permitted to obtain a certificate regarding the nature of the condition; its expected duration; and the date of commencement of the condition. If the leave is to care for a relative, the employer also can require a certification that the services of the employee are necessary to provide such care. The employer further can require periodic reporting regarding the status of the employee or relative, and can obtain a second opinion where the validity of the certification provided by the employee is in doubt. The company must pay for any second opinion, and the company may not use a physician who is employed by the company on a regular basis to provide that second opinion. Where there is a conflict of opinion between the employee’s physician and the company’s physician, the company and the employee must pick a tie breaking physician for a third opinion (with the company picking up the tab for this third opinion). The third opinion is considered final and binding on both parties.
In addition, the company is entitled to obtain a medical release when the employee seeks to return to work, as a condition of allowing such return. However, the Act provides that this provision does not modify any of the provisions of the ADA or any other federal/state anti-discrimination statute. As a result, care should be taken in refusing rehire to a disabled employee whose disability can be accommodated without an undue hardship on the conduct of the business.
Notice By Employee:
In order to qualify for leave, the employee must provide 30 days of advance notice of the anticipated leave, unless it is impracticable to do so.
Compensation Issues:
If the company has a paid leave plan, the company is entitled to substitute paid leave for unpaid leave to the extent that the employee has accrued paid leave. Thus, the employee can be forced to apply paid vacation, personal days and sick days to the leave period (which reduces the number of unpaid leave days required). This requirement applies regardless of whether the leave is required for the illness of the employee or to care for a relative. However, the company is not required to allow the employee to apply paid sick leave where the employee is absent to care for another. The Act specifically provides that the company does not have to expand its paid leave policies to provide for such additional paid leave, unless the company voluntarily opts to do so.
Reinstatement Rights:
Rank-and-file employees are entitled to automatic reinstatement either to their previous jobs or to substantially equivalent jobs. Such reinstatement includes continuation of all benefits which had accrued prior to the leave. However, it does not require that the leave time be treated as time worked for benefit calculations.
Intermittent Leaves:
In addition, the Act contains a provision which requires the company to provide “intermittent” leave where required due to the employee’s own health care problems or those of a covered relative. For instance, if the employee or the relative requires chemotherapy or dialysis twice per week, the company must allow the employee to take off in order to obtain or provide such care.
Enforcement:
The Act can be enforced by private suit. Remedies include backpay, lost benefits or other damages, interest on sums owed, attorney fees, and liquidated damages for “willful” violations. Suit must be filed in 2 years, but the limitations period is extended to 3 years for willful violations.