Most people have heard of the Family and Medical Leave Act, or FMLA, and generally know that it allows workers to take leave for medical reasons. The FMLA is one of the more complicated federal employment laws, and even many sophisticated companies struggle to understand and apply it correctly.
This article explains the FMLA basics, and a series of later articles will discuss common issues and questions that arise under that Act. Please note that, depending on where you live, state or city laws regarding medical leave may also apply, and many of these laws grant additional rights to employees.
Like most federal employment laws, the FMLA does not cover all employees of all businesses – according to a recent government survey, about 60% of U.S. workers are eligible for leave under the Act. The FMLA only applies to certain employers, certain employees, and certain types of leave, as discussed below.
First, the FMLA only applies to “covered employers,” which are private companies who employed more than 50 workers in 20 or more weeks within the last two calendar years, certain public entities, and schools. The Act only covers employees who work in locations with more than 50 employees within 75 miles. Therefore, employees at small and isolated branches of large companies may not be covered by the FMLA, even if other employees in the main office are covered.
Second, there are individual eligibility requirements which each worker must meet to become eligible for leave. The employee must have worked for the employer for at least 12 months. In addition, within the most recent 12 months before requesting leave, the employee must have worked at least 1,250 “hours of service.” (This translates to about 31 full forty-hour weeks). Therefore, new employees and part-time employees are generally not eligible.
Third, the FMLA only covers certain types of leave requests. Employees may request leave because of their own serious health condition, to care for a close family member with a serious health condition, or for the birth or adoption of a child (both men and women are eligible for this leave – it is not limited to maternity leave). An employee may also take leave to deal with “exigencies” if a close family member is called for military service.
There are lengthy and complex regulations defining FMLA eligibility and coverage, both for companies and for workers. Employers should never make assumptions about whether certain individuals are covered, or certain types of leave are permitted, without carefully reading the regulations and, if necessary, consulting with an experienced employment lawyer.
An employee is allowed to take up to 12 weeks of leave per FMLA year. While this seems like a simple and straightforward provision, many companies misapply it. Employers often think of FMLA leave as a single discrete block of time, but an employee is under no obligation to take the full amount of leave all at once. In fact, an employee may take “intermittent” leave, which may mean taking off one day a week, or working half-days. Companies often also make the mistake of firing an employee as soon as the 12 weeks of leave are up. Abruptly firing an employee based on a strict 12-week cutoff could give rise to a lawsuit for FMLA retaliation or Americans with Disabilities Act discrimination, and companies must tread carefully here.
Employers must also track how much leave an employee has used, and how much is still available. There are several ways that an employer can calculate a year for FMLA purposes. The simplest method is to use a calendar year or fiscal year. However, that means that an employee who takes 12 weeks of leave at the end of one year will have a fresh 12 weeks of leave on January 1st. Most employers prefer to use a “rolling” FMLA year that looks one year forward (or backward) from the day that each employee’s FMLA leave begins, even though this method of calculation is more administratively complex.
FMLA leave is unpaid, unless a company policy states that it will be paid. Companies have discretion to pay for all, part, or none of an FMLA leave period. An employer may also require the employee to use up accrued paid time off during his or her FMLA leave. This means that, if an employee has ten days accrued vacation, the leave will be paid for the first ten days, then will switch to unpaid leave. Sometimes FMLA leave may be paid, or partially paid, through a workers’ compensation or short-term disability insurance policy.
FMLA Notification Requirements
The FMLA also requires employers to provide both general and specific notice of employees’ rights under the Act.
General notice is fairly simple. Any employer with more than 50 employees must display posters providing general information about the FMLA. The employer must also provide this same information in its employee handbook, or any other written materials explaining the leave and benefits policies. An employer may use one of the many commercially available posters, or print out the official poster provided by the Department of Labor.
Specific notice is more complex. An employer must provide an eligibility notice to any employee who requests leave under the FMLA. Even if the employee does not specifically refer to the FMLA, the employer must give notice if it believes that the Act may apply. This notice must also provide the employee with a list of his or her rights and responsibilities under the FMLA. An employer must comply with these requirements precisely, or the notification is invalid, and the notice must be provided again every time an employee requests medical leave.
What can an employee do if his or her FMLA rights are violated? There are two types of lawsuits available under the FMLA. An interference claim arises when an employer refuses to allow an eligible employee to take leave or otherwise interferes with an employee’s leave. A retaliation claim arises when an employer punishes or retaliates against an employee for taking FMLA leave. Successful FMLA plaintiffs are entitled to reinstatement to their position as well as lost pay and benefits, any out-of-pocket expenses, and attorneys’ fees related to filing the lawsuit. They may also be entitled to liquidated damages, which means that the company will be ordered to pay the worker double as a punishment for violating the law.
The Family and Medical Leave Act is quite complicated, and it is critical to speak with an experienced employment attorney if you believe your rights have been violated. If you have any questions about your rights or obligations under the Act, or believe that your employer has unlawfully retaliated against you for taking protected leave, call New Orleans employment lawyer Charles Stiegler at (504) 267-0777 or email me today.