The Family and Medical
Leave Act of 1993
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:
-
public agencies, including
state, local and federal
employers, local education
agencies (schools),
and
-
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:
-
work for a covered
employer;
-
have worked for the
employer for a total
of 12 months*
-
have worked at least
1,250 hours over the
previous 12 months*
and
- 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.
* See
special rules for returning
reservists under USERRA.
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:
- for the
birth and care of
the newborn child
of the employee;
- for placement
with the employee
of a son or daughter
for adoption or foster
care;
- to care
for an immediate family
member (spouse, child,
or parent) with a
serious health condition;
or
- to take
medical leave when
the employee is unable
to work because of
a serious health condition.
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.
- 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.
-
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:
- 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
-
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
therefore, 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:
-
treatment two or more
times by or under
the supervision of
a health care provider;
or
-
one treatment by a
health care provider
with a continuing
regimen of treatment;
or
(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:
-
doctors of medicine
or osteopathy authorized
to practice medicine
or surgery by the
state in which the
doctors practice;
or
-
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
-
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
-
Christian Science
practitioners listed
with the First Church
of Christ, Scientist
in Boston, Massachusetts;
or
-
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:
-
notify the employee
of his/her status
as a "key"
employee in response
to the employee's
notice of intent to
take FMLA leave;
-
notify the employee
as soon as the employer
decides it will deny
job restoration, and
explain the reasons
for this decision;
-
offer the employee
a reasonable opportunity
to return to work
from FMLA leave after
giving this notice;
and
-
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:
-
medical certification
supporting the need
for leave due to a
serious health condition
affecting the employee
or an immediate family
member;
-
second or third medical
opinions (at the employer's
expense) and periodic
recertification; and
-
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.
DOL Web Pages on This
Topic:
Compliance
Assistance: Family and
Medical Leave Act (FMLA). Links to
various sources of information
about FMLA:
Fact
Sheet on FMLA: Covers the
major requirements of
FMLA.
FMLA
Compliance Guide: Summarizes
FMLA provisions and
regulations and provides
answers to the most
frequently asked questions.
elaws
FMLA Advisor: The FMLA
Advisor provides information
about employee eligibility
under the law; including
valid reasons for leave;
employee/employer notification
responsibilities; and
employee rights and
benefits.
The
FMLA Poster: All covered
employers are required
to display and keep
displayed a poster prepared
by the Department of
Labor summarizing the
major provisions of
the FMLA.
Federal vs. State
Family and Medical Leave
Laws
These
pages compare the provisions
of the Federal Family
and Medical Leave Act
(FMLA) with similar
statutes that have been
enacted by 11 states
(California,
Connecticut,
Hawaii,
Maine,
Minnesota,
New
Jersey, Oregon,
Rhode
Island, Vermont,
Washington,
and Wisconsin)
and the District
of Columbia. Unless
noted, the comparison
only reflects the statutes
that have been enacted
by the states, not regulations
that may have been enacted
by the responsible state
agency. For example,
the Federal Act and
a state statute may
use an identical term
like "serious health
condition," but
DOL and the state agency
may define that term
somewhat differently
in their regulations.
In preparing the tables
for each state (as discussed
below), however, we
only have compared the
key provisions of the
Federal FMLA with each
States statutory provisions. Note
that states may have
other statutes that
affect an employee's
right to leave for particular
purposes such as pregnancy,
attendance at school
activities, organ or
blood marrow donations,
worker's compensation,
and disability. States
also may regulate by
separate statute or
regulation leave and
related provisions for
employees of state,
county, and other governmental
agencies. Users are
encouraged to utilize
the links to particular
state labor agencies
[state
labor offices] in
order to obtain more
complete information
about a state's laws
affecting employment
leave for family, medical,
and other purposes.
For more complete information
about the federal family
and medical leave act,
users are encouraged
to utilize the following
link: WH
FMLA Page.
For
each state, a table
has been provided to
allow for a comparison
of the provisions of
the Federal Family and
Medical Leave Act and
the States corresponding
statute. The major provisions
of the Federal Family
and Medical Leave Act
are listed, by topic,
in the first column
of each table, the second
column summarizes the
elements of the Federal
law; and the third column
the corresponding State
elements. For example,
the table shows the
similarities, or differences,
in Federal/State employer
coverage requirements,
the similarities or
differences in definitions
of a "serious health
condition," and
whether or not employers
must maintain an employee's
health and medical benefits
if the employee is absent
under Family and Medical
leave. In using the
tables, however, users
should be mindful that
the statutes coverage
and eligibility provisions
must be satisfied as
a condition for leave
under the Federal statute,
the State statute, or
both.
Covered
employers must comply
with the federal or
state provision that
provides the greater
benefit to their employees.
The U.S. Department
of Labor will not enforce
State family and medical
leave laws, and States
may not enforce FMLA.
Employees have no obligation
to designate whether
the leave they are taking
is FMLA leave as opposed
to leave under State
law. The
information provided
in the tables is effective
as of January 1, 2005.
We plan to update this
comparison periodically.
Users are encouraged
to refer to the Family
and Medical Leave Act
compliance assistance
page for links to
the text of the Federal
Family and Medical Leave
Act, DOLs regulations,
and additional compliance
information about Federal
law. Further
information on Federal
FMLA may be obtained
by contacting the nearest
office of the Wage and
Hour Division, listed
in most telephone directories
under U.S. Government,
Department of Labor,
Employment Standards
Administration, or by
dialing 1-866-487-9243.
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