What is the FMLA?

The Family and Medical Leave Act of 1993 (FMLA) is a US federal law that requires that employers give employees unpaid, job-protected leave for a certain period of time. 

The leave is restricted to specific family and medical reasons. During this period, the employee should continue to have group health insurance as if the employee had not left at all. Additionally, the employee cannot be replaced by the employer and the job will stay open for the employee to return to. FMLA is applicable to all public agencies within the US – including local education agencies – as well as larger private employers. The length of the leave is restricted to 12 weeks in total per year. Employees do not have to take a leave for the full 12 weeks and can take multiple leaves during the same year for multiple reasons, but the length of all leaves together cannot exceed 12 weeks. 

Leave can be taken for the following reasons: 

• Birth, adoption, or foster care of a child within one year of the birth, adoption, or placement
• A serious health condition that renders the employee to perform essential job functions
• Care for a spouse, child, or parent who has a serious health condition
• Urgent need that arises from a family member being on active duty in the military

Who Can Take FMLA Leave?

Not all employees are automatically covered by the FMLA and given the right to unpaid time off. The FMLA has certain requirements that must be met for an employee to be eligible for FMLA leave.

Firstly, for the FMLA to apply, the employer (if private) must employ a minimum of 50 employees for a minimum of 20 workweeks in the previous or current year. Smaller private employers are not covered by the FMLA. Employees who are employed at a facility with less than 50 employees or employed with an employer who has less than 50 employees within 75 miles of the facility are not eligible. Employees who work for a private employer with less than 50 employees may still be covered by state laws on family and medical leave. 

Furthermore, employees are only eligible when they have worked for the employer for a period of 12 months and have worked at least 1250 hours (24 hours per week) within that 12-month period. The 12 months of work do not need to be performed in a row, so this can include seasonal and part-time work performed over a few years. 

See the below image to see if an employee is eligible:

Source: Department of Labor, Wage and Hour Division

Special Eligibility Provisions

Military Leave

Employees can take FMLA leave when a family member that is in the military is injured or called to duty. This applies to employees with family members in the National Guard, Regular Armed Forces, or the Reserves. There are two types of military leave: 

Employees can take up to 12 weeks’ leave for any “qualifying exigency” relating to a spouse, parent, or child. The FMLA limits family members to those three for the purposes of military leave. The employer may require advance notification for the leave where possible and may also require some proof that the family member is on active duty. 

There are eight qualified exigencies: 

1. Child care – the employee can take leave to arrange care for a family member’s child. 
2. Parental care – the employee can take leave to arrange care or to care for a family member’s parent. 
3. Counseling – the employee can take leave to attend counseling for the family member, their child, or for themself. 
4. Rest and recuperation – where a family member has returned from deployment for rest and recuperation, the employee can take leave for up to 15 days to spend with them. 
5. Short-notice deployment – the employee can take leave for up to 7 days to address any issues where a family member has been called to duty with short notice. 
6. Military events – the employee can take leave to attend military events and ceremonies. This also attends to any other reasonable military event – such as family support programs. 
7. Financial arrangements – the employee can take leave to help make financial arrangements for the family member. For example, to make a will. 
8. Post-deployment – the employee can leave to attend ceremonies and events relating to the return of a family member from active duty. 

Where an employee has to care for a family member who has been injured while on active duty, the FMLA allows up to 26 weeks of leave. 12 of the 26 weeks can be used for any other qualified reason for taking FMLA leave. Family members include spouses, parents, children, and next of kin (the injured person’s nearest blood relative). The family member must have been a currently serving member or a veteran of the military who has been discharged within the last five years. 

The employer can require the employee to produce proof of the injury to the servicemember.

For the leave to be granted, the illness or injury must have been acquired during active duty or service or their active duty must have caused a pre-existing illness or injury to resurface. This illness or injury must render the servicemember unfit to perform their duties. Employees can also take leave to care for a family member who is undergoing medical treatment, therapy or is recovering from such. 

Flight Crew and Attendants

Airline staff and crew do not usually work according to traditional schedules and workweeks and patterns can vary. To account for this, the FMLA has different eligibility requirements. An airline crew member will meet the working hours requirement if, within the last 12 months, they have worked or have been paid for at least 60% of their monthly guarantee. They must have worked and must have been paid for at least 504 hours of work. 

Schedule of FMLA Leave

While the leave lasts for 12 weeks per year, there are three ways in which an employee can opt to take the leave. 

Continuous Leave 

Continuous leave, just as it sounds, is taking the leave for a continuous period of time. However, this does not mean that the leave has to last 12 weeks. Rather, continuous leave can range from a couple of days to the full 12 weeks. The most common scenario is where an employee has given birth and chooses to take the next 12 weeks off work to spend with the baby and recover. 

It is completely left up to the employee to choose whether to take continuous leave. The employer cannot refuse continuous leave nor force an employee to take it or extend it. 

Continuous leave is beneficial both for employer and employee as they can predict when they will not be in the office and when they can be. It allows for both parties to plan ahead and organize any work ahead of time or divide responsibility between other members of staff. 

Intermittent Leave 

On the other hand, intermittent leave is harder to predict and plan for as the employee may not be able to specify the dates that they will need off ahead of time. For example, this can be leave required for specific appointments or leave required after a medical operation. In these cases, the leave is unlikely to be continuous as the employee can work some days but not others. These days off can differ from week to week, making it harder to organize and plan around it. 

Reduced Work Hours 

Unlike the other two types, this does not remove the employee from work for full days. Rather, the employee merely does less work for the employer and may change their working times. This is most commonly caused by their own health conditions or a family member’s health condition that requires the employee to care for them. 

For example, where the employee’s usual working hours are from 9am till 5pm, the employee may work from 10am till 6pm or 10am till 4pm. Unlike intermittent leave, this usually allows for more certainty as to working times and days. In addition, the employer will not lose full utility from a worker for a 12-week period. 

FMLA Protection for Employees 

Where an employee is eligible for leave and is covered by the FMLA, the FMLA prohibits the employer from retaliating against the employee for exercising their rights under the Act. 

Section 105 of the FMLA prohibits the following actions:

Advantages of FMLA for Employees

There are clear advantages to taking 12 weeks’ leave such as the opportunity to rest or handle urgent matters. However, there are also some ancillary advantages to taking leave under the FMLA. 

Returning to Work 

Under the FMLA, when the employee returns to work, the employer must return them to the same job or one that is nearly identical. Where the employer cannot replace the employee to the same job, the new job must: 

• Involve the same or substantially similar duties, responsibilities, and status
• Be of the same general level of skill, responsibilities, and authority 
• Offer identical pay – including premium pay, overtime, and bonus opportunities 
• Offer identical benefits – e.g. life, health, and disability insurance, sick leave, and vacation leave
• Offer the same or substantially similar work schedule and be at the same location

These protections cease to exist where the employee exhausts their 12-week leave period and fails to return to work. 

Key employees who are among the highest-paid 10% within the company may not be guaranteed reinstatement to their positions following an FMLA leave. 

Enforcement

Source – US Department of Labor, Wage and Hour Division

The provisions of the FMLA and the rights granted to individuals are enforced by the Wage and Hour Division (WHD) of the Department of Labor. The job of the WHD is to ensure that all employees are receiving their statutory rights where they are eligible for them. 

The WHD also investigates any complaints and attempts to resolve any disputes or issues within a workplace. If no such resolution can be found, the WHD may bring an action through the courts to ensure compliance of the FMLA. 

Employees who allege that a violation has taken place may bring a civil action in their own name. However, the claim must be brought within two years of the infraction taking place. 

Note: while most federal employees and some congressional employees are covered by the FMLA, their rights are administered and enforced through the US Office of Personnel Management. 

Filing a Complaint 

Where employees believe that a violation of the FMLA has occurred, they can file a complaint with the WHD. To make a complaint, the employee should visit one of over 200 WHD offices around the US. To find your local WHD office, click here. Your employer cannot retaliate against you for making the complaint. If an employer does retaliate, then this can also be reported to the WHD who will investigate the complaint.

When making a complaint to the WHD, it is useful to have the following pieces of information to hand: 

• Basic details about yourself – name, address, contact information
• Basic details about the company – name, address, contact information 
• Details of the manager or owner of the company 
• The circumstances around the FMLA leave request 
• The employer’s response to the FMLA request
• Any further relevant information that you think is useful

Requesting FMLA Leave

When requesting FMLA leave it is best to give the employer notice as early as possible. Where an employee is aware of the need for FMLA early, it is best to give notice at least 30 days prior to the start of the leave. Where the employee becomes aware of the need for FMLA within 30 days of the start date of the leave, the employee must give notice as quickly as they can. 

The employee must give enough information in their request for leave for the employer to understand that the employee is asking for an FMLA leave. If insufficient information is provided, then the employee may be taking leave without protection from the FMLA. There is no requirement that the employee must disclose all information regarding the need for leave – rather, the employee only needs to disclose as far as it would reasonably require for the employer to understand that the leave is FMLA related.  

Sample Forms

The Department of Labor produces sample forms and notices that employers and employees can use. Find links below to the form that you require: 

FMLA General Info

Eligibility Notice Form

Rights & Responsibilities Notice

Designation Notice

Employee’s Serious Health Condition Form

Family Members Serious Health Condition

Military Leave, Caregiver of Current Servicemember

Military Leave, Caregiver of Veteran

For further information and any forms that we may have missed, visit the Department of Labor website.