In 1993, Congress passed the Family and Medical Leave Act (FMLA) to provide a national policy that supports families in their efforts to balance their work and family responsibilities by taking reasonable unpaid leave for certain family and medical reasons. The FMLA provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. ¡§The FMLA also seeks to accommodate the legitimate interests of employers, and promotes equal opportunity for men and women¡¨ (Executive Summary, 1999).
Before the Family and Medical Leave Act, employees had access to family and medical leave in two ways:
(1) Voluntary or collectively bargaining employer policies
(2) Policies required by state leave statutes
The Act was passed because Congress found that:
„h The number of single-parent households and two-parent households in which the single parent or both parents work is increasing significantly; and
„h It is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions;
It is the purpose of this Act –
„h 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;
„h To entitled 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; and
„h To promote the goal of equal employment opportunity for men and women.
(Employment Standards Administration, 1999)
The FMLA applies to all public agencies, private/public elementary and secondary schools, and employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and are in the commerce industry (The Family and Medical Leave Act of 1993, 1999). Once covered, the employer is given responsibilities. There are many employee notifications an employer is required to make in various circumstances under FMLA.
First, every covered employer is required to post and keep posted a FMLA poster, whether or not it has any “eligible” employees. The poster and the text must be large enough to be easily read and contain fully legible text, an employer that willfully violates the posting requirement may be assessed a civil money penalty. Also, failure to post the required notice prevents the employer from taking any adverse action against an employee, including denying FMLA leave or failing to provide advance notice of a need to take FMLA leave. (See Addendum A)
Secondly, if an employer provides an employee handbook to all employees that describes the employer’s policies regarding leave, wages, attendance, and similar matters, the handbook must incorporate information on FMLA rights and responsibilities and the employer’s policies regarding FMLA. The employer is also responsible for notifying the employee of eligibility status.
The employer¡¦s most important responsibility is to provide eight pieces of information in writing to an employee who requests leave:
(1) Whether the leave will be counted against the employee¡¦s FMLA leave entitlement;
(2) Requirements for furnishing medical certification for a serious health condition and the consequences for failing to do so;
(3) The employee¡¦s right to substitute paid leave and whether the employer will require the substitution of paid leave;
(4)Requirements for making any health benefit premium payments; consequences for failing to make timely payments; and, circumstances under which coverage might lapse;
(5) Requirements to submit a fitness-for-duty certificate to be restored to employment;
(6) Employee¡¦s status as a key employee;
(7) Employee¡¦s right to restoration when leave is completed;
(8) Employee¡¦s potential liability if the employer makes the employee¡¦s health insurance premium payments while the employee is on unpaid FMLA leave if the employee fails to return to work.
This written Prototype Notice should be provided to the employee within a reasonable time after the employee gives notice of the need for FMLA leave, within one or two business days, if feasible (Employer Notification Responsibilities, 1999). (See Addendum B)
To be eligible for FMLA benefits, an employee must: (1) work for a covered employer; (2) have worked for the employer for a total of 12 months; (3) have worked at least 1,250 hours over the previous 12 months; and (4) work at a location in the United States where at least 50 employees are employed by the employer within 75 miles (The Family and Medical Leave Act of 1993, 1999). Although it seems the employer has a lot of responsibility, the employee also has a list to go by.
First, the employee must provide notice to their employer of the need for leave by either: a) leave that is foreseeable — 30 days notice; b) leave that is unforeseeable — as soon as practicable; or c) comply with the employer¡¦s rules for requesting leave. Secondly, the employee must advise their employer if leave is to be taken intermittently or on a reduced leave schedule basis. The associate must also provide medical certification for leave taken because of a serious health condition if required by their employer.
The staff member should comply with arrangements to make group health benefit co-payments and periodically advise their employer of their intent to return to work at the conclusion of leave. Finally, it is the employee¡¦s responsibility to notify their employer of any change in the circumstances for which leave is being taken (Executive Summary, 1999).
As an eligible FMLA employee, there are certain rights and benefits granted to the employee. The employee is given 12 weeks of unpaid FMLA leave in a 12-month period and continuation of group health benefits during their leave. Restoration to the same or equivalent job upon return to work, retention of accrued benefits, and protection from discrimination is granted to the employee as rights because of taking FMLA leave (The ADA and FMLA Reference Library, 1998).
There are four valid reasons for leave under the Family and Medical Leave Act of 1993. The employee may take leave for the birth and care of a newborn child. For the birth of a son or daughter to the employee, both father and mother are entitled to FMLA leave. The entitlement to FMLA leave expires one year past the child¡¦s birth date. Under some circumstances FMLA leave may occur before birth of the child.
The second instance the employee is permitted FMLA leave is for the adoption and foster care of a child. Both the husband and wife are granted FMLA leave to be taken for placement of a child with the employee for adoption. The associate¡¦s leave expires after the child has been placed for 12 months, but leave may begin before placement if absence from work is required for the child to be placed.
Thirdly, the employee may take family leave to care for an immediate family member with a serious health condition (illness, injury, impairment, or physical or mental condition). Leave taken to care for a spouse, son, daughter, or parent with a serious health condition may be taken a few hours at a time or on a part-time basis; whenever the leave is necessary.
Lastly, the employee is granted FMLA leave to take medical leave when the he/she is unable to work because of a serious health condition. The FMLA covers:
„h Any period of incapacity or treatment connected with inpatient care;
„h Incapacity requiring absence of more than three calendar days;
„h Incapacity due to pregnancy or prenatal care;
„h Incapacity due to a chronic serious health condition;
„h Incapacity that¡¦s permanent or long-term; or for
„h Any absences to receive multiple treatments.
(The Family and Medical Leave Act of 1993, 1999)
If the employee feels that he/she is being treated unjustly, they can file a complaint with the Secretary of Labor. A complaint must be filed within two years of the date of the last action that the employee contends was in violation of the Act. For the best chance of success in resolving the complaint, the complaint should be filed as soon as possible. The employee or any other person on behalf of the employee may file the complaint. The Secretary of Labor complaint can be filed by contacting the nearest Wage and Hour Division of the Employment Standards Administration, U.S. Department of Labor. The complaint must be done in writing and the U.S. Department of Labor will review the complaint, and where appropriate, undertake to resolve the complaint administratively.
The employee can also file a lawsuit in the courts to resolve the breach of the Family and Medical Leave Act. There is no requirement that the Secretary of Labor be notified before filing a lawsuit. In addition to a judgement, an employee may recover reasonable attorney¡¦s fees, reasonable expert witness fees, and other costs of the action from the employer.
In the event that the employer is found to have violated FMLA, remedies available to the employee are wages, employment benefits, other compensation denied or lost to the employee, or actual monetary loss to the employee. The employee may also obtain appropriate equal assistance such as: employment, reinstatement, or promotion (The ADA and FMLA Reference Library, 1998).
The Family and Medical Leave Act has had a positive impact on employees overall. It has succeeded in the turnover from a previous non-existent policy to a strictly enforced law. The FMLA has not been an overburden to employers and the costs are minimal. The FMLA adds responsibility to both the employee and the employer, but with careful planning and understanding the Act will work in the way it is meant. The FMLA is meant to not only help the employee in hard times or joyful times, but to help the employer with employee retention and to build job loyalty. Most periods of leave are short, most employees return to work and reduced turnover is a positive effect.
The FMLA, with the job protection and maintenance of health benefits, seems to be the best way to help support families in their efforts to balance their work and family responsibilities.
Employer Notification Responsibilities, 1999. http://ww/elaws.dol.gov/scripts/netrun.exe
Employment Standards Administration, 1999. http://www.elaws.dol.gov/fmla/wren/s1.htm
Executive Summary, 1999. http://www.dol.gov/dol/esa/public/regs/compliance/whd/fmla/summary.htm
The ADA and FMLA Reference Library. Washington: Icon Publishing, 1998.
The Family and Medical leave Act of 1993, 1999. http://www.dol.gov/dol/esa/public/regs/compliance/whd/whdfs28.htm