The U.S. Department of Labor's Employment Standards
Administration, Wage and Hour Division, administers and
enforces the Family and Medical Leave Act (FMLA) for all
private, state and local government employees, and some
federal employees. Most Federal and certain congressional
employees are also covered by the law and are subject to
the jurisdiction of the U.S. Office of Personnel
Management or the Congress.
FMLA became effective on August 5, 1993, for most
employers. If a collective bargaining agreement (CBA) was
in effect on that date, FMLA became effective on the
expiration date of the CBA or February 5, 1994, whichever
was earlier. FMLA entitles eligible employees to take up
to 12 weeks of unpaid, job-protected leave in a 12-month
period for specified family and medical reasons. The
employer may elect to use the calendar year, a fixed
12-month leave or fiscal year, or a 12-month period prior
to or after the commencement of leave as the 12-month
period.
The law contains provisions on employer coverage;
employee eligibility for the law's benefits; entitlement
to leave, maintenance of health benefits during leave, and
job restoration after leave; notice and certification of
the need for FMLA leave; and, protection for employees who
request or take FMLA leave. The law also requires
employers to keep certain records.
EMPLOYER COVERAGE
FMLA applies to all:
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public agencies, including state, local and federal
employers, local education agencies (schools), and
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private-sector employers who employed 50 or more
employees in 20 or more 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.
EMPLOYEE ELIGIBILITY
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 or in any
territory or possession of the United States 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:
Spouses employed by the same employer are jointly
entitled to a combined total of 12 work-weeks of
family leave for the birth and care of the newborn child,
for placement of a child for adoption or foster care, and
to care for a parent who has a serious health condition.
Leave for birth and care, or placement for adoption or
foster care must conclude within 12 months of the birth or
placement.
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.
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If FMLA leave is for birth and care or placement for
adoption or foster care, use of intermittent leave is
subject to the employer's approval.
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FMLA leave may be taken intermittently whenever
medically necessary to care for a seriously ill
family member, or because the employee is seriously ill
and unable to work.
Also, subject to certain conditions, employees or
employers may choose to use accrued paid leave
(such as sick or vacation leave) to cover some or all of
the FMLA leave.
The employer is responsible for designating if an
employee's use of paid leave counts as FMLA leave, based
on information from the employee.
"Serious health condition" means an illness,
injury, impairment, or physical or mental condition that
involves either:
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any period of incapacity or treatment connected with
inpatient care (i.e., an overnight stay) in a hospital,
hospice, or residential medical-care facility, and any
period of incapacity or subsequent treatment in
connection with such inpatient care; or
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Continuing treatment by a health care provider which
includes any period of incapacity (i.e., inability to
work, attend school or perform other regular daily
activities) due to:
(1) A health condition (including treatment therefor,
or recovery therefrom) lasting more than three consecutive
days, and any subsequent treatment or period of incapacity
relating to the same condition, that also includes:
(2) Pregnancy or prenatal care. A visit to the health
care provider is not necessary for each absence; or
(3) A chronic serious health condition which continues
over an extended period of time, requires periodic visits
to a health care provider, and may involve occasional
episodes of incapacity (e.g., asthma, diabetes). A visit
to a health care provider is not necessary for each
absence; or
(4) A permanent or long-term condition for which
treatment may not be effective (e.g., Alzheimer's, a
severe stroke, terminal cancer). Only supervision by a
health care provider is required, rather than active
treatment; or
(5) Any absences to receive multiple treatments for
restorative surgery or for a condition which would likely
result in a period of incapacity of more than three days
if not treated (e.g., chemotherapy or radiation treatments
for cancer).
"Health care provider" means:
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doctors of medicine or osteopathy authorized to
practice medicine or surgery by the state in which the
doctors practice; or
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podiatrists, dentists, clinical psychologists,
optometrists and chiropractors (limited to manual
manipulation of the spine to correct a subluxation as
demonstrated by X-ray to exist) authorized to practice,
and performing within the scope of their practice, under
state law; or
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nurse practitioners, nurse-midwives and clinical
social workers authorized to practice, and performing
within the scope of their practice, as defined under
state law; or
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Christian Science practitioners listed with the
First Church of Christ, Scientist in Boston,
Massachusetts; or
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Any health care provider recognized by the employer
or the employer's group health plan benefits manager.
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. If applicable, arrangements will need to be made for
employees to pay their share of health insurance premiums
while on leave.
In some instances, the employer may recover premiums it
paid to maintain health coverage for an employee who fails
to return to work from FMLA leave.
JOB RESTORATION
Upon return from FMLA leave, an employee must be
restored to the employee's original job, or to an
equivalent job with equivalent pay, benefits, and other
terms and conditions of employment.
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, nor be counted against the employee under a
"no fault" attendance policy.
Under specified and limited circumstances where
restoration to employment will cause substantial and
grievous economic injury to its operations, an employer
may refuse to reinstate certain highly-paid "key"
employees after using FMLA leave during which health
coverage was maintained. In order to do so, the employer
must:
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notify the employee of his/her status as a "key"
employee in response to the employee's notice of intent
to take FMLA leave;
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notify the employee as soon as the employer decides
it will deny job restoration, and explain the reasons
for this decision;
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offer the employee a reasonable opportunity to
return to work from FMLA leave after giving this notice;
and
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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 are required to
provide 30-day advance notice of the need to take FMLA
leave when the need is foreseeable and such notice is
practicable.
Employers may also require employees to provide:
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medical certification supporting the need for leave
due to a serious health condition affecting the employee
or an immediate family member;
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second or third medical opinions (at the employer's
expense) and periodic recertification; and
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periodic reports during FMLA leave regarding the
employee's status and intent to return to work.
When intermittent 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 try to
schedule treatment so as not to unduly disrupt the
employer's operation.
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.
Also, covered employers must inform employees of their
rights and responsibilities under FMLA, including giving
specific written information on what is required of the
employee and what might happen in certain circumstances,
such as if the employee fails to return to work after FMLA
leave.
UNLAWFUL ACTS
It is unlawful for any employer to interfere with,
restrain, or deny the exercise of any right provided by
FMLA. 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
The Wage and Hour Division investigates complaints. If
violations cannot be satisfactorily resolved, the U.S.
Department of Labor may bring action in court to compel
compliance. Individuals may also 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 intermittent
leave is needed or the leave is required near the end of a
school term.
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, nor supersede any state or
local law which provides greater 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.
FURTHER INFORMATION
The final rule implementing FMLA is contained in the
January 6, 1995, Federal Register. 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.