Family And Medical Leave Act (FMLA) - 2012.



The Family and Medical Leave Act (FMLA) became law in 1993, and underwent significant changes in 2008 and 2009. According to its Congressional sponsors, the purpose of FMLA was to promote development of the family unit and to enhance worker productivity. The Act was also intended to address the potential for sexual discrimination against women, who have traditionally been the primary caretakers in our society.

The Act's protections were extended to employees whose family members were either in the military or retired military and needed care from those family members or whose service created a qualifying exigency as addressed below. But in the process of addressing these laudable goals, Congress has created one of the most complex statutes of all those that mandate employment related benefits. It imposes significant restrictions on a company's treatment of employees who request, take and return from leave and requires strict notice obligations.

FMLA applies to private employers having 50 or more employees for a 20-week period during the current or preceding calendar year, as well as to all governmental employers, local educational agencies, and schools, both public and private without regard to number of employees.

Covered employers must generally provide eligible employees up to 12 work weeks of unpaid leave and other FMLA entitlements. These include continuation of health insurance during leave on the same terms and conditions while not on leave, as well as restoration to the same or an equivalent position upon returning from leave.

An employer may not discriminate against any employee or interfere with, restrain, or deny the exercise or the attempt to exercise any right provided under the Act. An employer may not retaliate against any individual for opposing practices made illegal by the Act.


The first step in evaluating your employees' rights and obligations under FMLA is to determine whether your company is covered by the Act. If covered, you must then determine whether the employee at issue is eligible for benefits under FMLA.

  1. Is Your Business Covered?

    You are a covered employer under FMLA if you:

    employ 50 or more employees

    each working day

    for 20 or more calendar workweeks (not necessarily consecutive)

    in the current or preceding calendar year.

    The test of "employment" is relatively broad, and it includes:

    employees on the payroll even if no compensation is received;

    employees on leave if there is a reasonable expectation that they will return; and

    part-time employees.

    The number of employees employed during a calendar workweek does not include those:

    who have been laid off (temporarily or permanently);

    who begin work after the first working day of a calendar week; or

    who terminate employment before the last working day of a calendar week.

    The term "employer" includes any persons who act directly or indirectly in the interest of an employer. This means that individuals, such as corporate officers, may be liable for FMLA violations. An employer remains covered until it no longer employs at least 50 employees for 20 workweeks in the current and preceding calendar years.

  2. Is The Employee Eligible?

    Even if you meet the coverage test, not all of your employees are eligible. An "eligible employee" is one who has been employed:

    for at least 12 months (note: periods of employment within the prior seven years must be added together to determine whether this requirement is met; longer if the break in service was due to certain military service);

    for at least 1,250 hours during the previous 12-month period; and

    at a worksite where 50 or more employees are employed within 75 surface miles.

    If an employee is maintained on your payroll for any part of a week, including periods of leave, that week counts as a week of employment. (Note that this is different from the test for coverage, where employees must be employed for a full week to be counted toward coverage). For purposes of determining whether intermittent employment qualifies as "at least 12 months," 52 weeks is deemed to be equal to 12 months.

    The 12-month and 1,250-hour tests are determined as of the date leave is to commence, rather than the date leave is requested.

    If you fail to maintain accurate records of hours worked, then you have the burden of showing that an employee has not worked the requisite number of hours.

    The determination of whether 50 employees are employed within 75 surface miles of the worksite is made at the time of notice of leave. An employee's worksite will ordinarily be the site to which he or she reports, or from which the work is assigned. An employee's initial eligibility is not affected by any subsequent change in the number of employees employed.


    Eligible employees may be entitled to FMLA leave for any of six general reasons:

    childbirth and subsequent care of the newborn;

    placement of a child for adoption or foster care;

    to care for the employee's spouse, child or parent who has a "serious health condition";

    the employee's own serious health condition that makes it impossible for the employee to perform the functions of the job;

    a "qualifying exigency" caused by a spouse, son, daughter, or parent's call to covered active military duty; or

    to care for a covered service member with a serious injury or illness who is the employee's spouse, child, parent, or next of kin.

    With one exception, the maximum amount of leave that may be taken in a 12-month period for all reasons combined is 12 weeks. For leave to care for a covered service member, the maximum combined leave entitlement is 26 weeks, with leaves for all other reasons constituting no more than 12 of those 26 weeks.

  3. Birth Of A Child

    Both male and female employees are eligible for FMLA leave upon the birth of a child. Employees may not take leave for the birth of a child more than 12 months after the date of the birth. Leave to care for a newborn child may not be taken on an intermittent basis without the employer's consent.

  4. Placement Of A Child For Adoption Or Foster Care

    Male and female employees may take leave upon the adoption of or placement of a child in foster care as they would for the birth of a child. If needed, the employee may take the leave before the adoption or the placement in foster care. Leave to care for an adopted child may not be taken on an intermittent basis without the employer's consent.

  5. Care For An Employee's Spouse, Child, Or Parent

    With A Serious Health Condition

    FMLA allows leave for the care of a spouse, child or parent with a "serious health condition" (defined below). A spouse is a husband or wife as recognized by state law.

    A parent is either the biological, adoptive, step, or foster parent of the employee or an individual standing in loco parentis to the employee. To be considered standing in loco parentis, the individual must have or have had day-to-day responsibility to care for and financially support the child.

    An individual is a qualifying child if the child is under the age of 18 and is a biological or adopted child, a step-child, foster child, a legal ward of an employee, or if the individual is a child of an employee standing in loco parentis. An employee may take leave to care for a child 18 and over if the child is unable to provide for his or her own daily self-care, or if the child is physically or mentally disabled.

    To be entitled to take FMLA leave because of the serious health condition of a family member, the serious health condition must necessitate the need for the employee's presence to care for the condition, and must be supported by a health care provider's opinion if requested. This care may be either physical or psychological. Physical necessities may range from taking care of the family member's daily hygiene to transporting the family member to the doctor. Psychological care generally means that the presence of the employee would be beneficial to the psychological wellbeing of the family member. Therefore, an employee may in some cases be entitled to leave in order to provide moral support to a child, parent, or spouse with a serious health condition.

    An employee is entitled to intermittent leave in situations where the care and the employee's presence is only needed sporadically (such as to accompany the patient to weekly doctor's appointments). The employer may require the employee to provide medical certification that the patient requires assistance for basic physical needs or that the presence of the employee would be psychologically beneficial.

  6. The Employee's Own Serious Health Condition

    FMLA provides an employee with leave for a serious health condition that makes the employee "unable to perform the functions of the position of such employee." An employee is unable to perform the functions of his position when he is either completely unable to work or simply unable to perform one or more essential functions of his job. This includes occasional absences required for treatment, examination, and monitoring.

  7. Qualifying Exigency Leave

    Eligible employees may take unpaid "Qualifying Exigency Leave" to tend to certain non-medical "exigencies" arising out of the fact that the employee's spouse, son, daughter, or parent is on covered active military duty or has been notified of an impending call to covered active duty status. The call to active duty must generally be a federal call to active duty; state calls to active duty are not covered unless under order of the President of the United States.

    Persons who can be ordered to active duty include active and retired members of the Regular Armed Forces, certain members of the retired Reserve, and various other Reserve members including the Ready Reserve, the Selected Reserve, the Individual Ready Reserve, the National Guard, state military, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard, Air Force Reserve, and Coast Guard Reserve.

    Qualifying Exigency Leave is available under the following...

To continue reading