The Family Medical Leave Act (“FMLA”) is a federal law that requires certain employers to give unpaid leave to employees who are experiencing certain family or medical issues. This post will address some common questions about FMLA and its usage.
FMLA applies to all public employers (including state and local governments and schools), but only applies to private employers who employ approximately 50 or more employees. Thus, mom and pop shops aren’t subject to FMLA. The rationale here is that the disruption of having to provide leave in a small employer situation is too great. FMLA also doesn’t apply to all employees. To qualify, the employee has to work near a worksite with 50 or more employees, has to have worked for the employer for at least one year, and has to have worked at least 1250 hours in that year (which averages to about 25 hours per week).
Where the FMLA applies to both the employer and employee in a particular situation, the employee is entitled to twelve weeks of unpaid leave per year to address a qualifying issue. Those issues include the following
- Birth of a child,
- Placement of a child with the employee for adoption or foster care,
- Care of an immediate family member with a “serious health condition,”
- For the employee’s own “serious health condition,” and
- Due to a situation created where a family member is on active duty or has been called to active duty in the U.S. National Guard or Reserves.
If the employee is the next of kin or close family member of a service member with a serious injury or illness, the employee can get up to twenty-six weeks of unpaid leave. During any period of FMLA leave, the employer has to maintain the employee’s health insurance benefits (if any). If the employee has paid leave available (vacation, sick leave), the employer may require the employee to use that leave as part of his or her FMLA leave. When the leave is over, the employer generally has to return the employee to the same job he or she had when the leave began.
If the employee needs leave, he or she must give thirty days’ notice when the need for leave is foreseeable, or as much notice as possible when the need for leave is not foreseeable. The employee also needs to give the employer at least enough information for the employer to be on notice that the leave might be FMLA-qualifying. Once the employee does so, the employer is “on the hook” for any failure to give the appropriate leave. The burden generally falls on the employer to request additional information as needed to evaluate the need for leave.
The FMLA creates an interesting problem for employers who want to investigate whether a person’s need for leave is “legitimate.” Particularly where the employee is seeking leave for a serious health condition, the employer must tread a fine line. The employer has a right to confirm with the employee’s doctor that indeed leave is needed for a serious health condition. However, the employer needs to be careful about gathering too much information regarding the employee and the nature of his or her condition. If, for example, the employer learns that the employee’s serious health condition is chronic and likely to require use of FMLA leave every year, the employer has just exposed itself to significant liability if it ever desires to terminate that employee’s employment (even for other reasons). It will be easy for the employee to contend that the employer fired him or her because of his or her chronic condition and is likely to sue (quite possibly successfully) under the FMLA and the Americans with Disabilities Act.
If you are faced with an FMLA leave issue, whether as the employer or the employee, it is well worth your effort to take some time to consider the legal ramifications of your situation. Done properly, FMLA leave can be a significant benefit to the employee without causing a significant disruption or cost for the employer. However, it is easy (particularly for employers) to run afoul of the requirements of the law, so early education for staff who might receive such requests is a must. If an employer waits to educate its employees about FMLA leave until after a leave request is made, the employer has waited too long, and is likely to face some penalties.
