Wage, Hour and Other Workplace Standards




DEPARTMENT OF LABOR

SMALL BUSINESS HANDBOOK
Wage, Hour and Other Workplace Standards
Family and Medical Leave

Updated: November 1997

Family and Medical Leave Act of 1993
(29 USC §2601 et seq; 29 CFR 825)

Who is Covered

The Family and Medical Leave Act (FMLA) is intended to provide a means for employees to balance their work and family responsibilities by taking unpaid leave for certain reasons. The Act is intended to promote both the stability and economic security of families, and the national interests in preserving family integrity.

The FMLA is applicable to any employer in the private sector who is engaged in commerce or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks or more in the current or preceding calendar year.

All public agencies (state and local government) and local education agencies (schools) are covered. These employers do not need to meet the 50 employee test. Most federal employees are covered by Title II of FMLA and are subject to regulations issued by the Office of Personnel Management.

In order to be "eligible" for FMLA leave, an employee must be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 employees; must have worked at least 12 months (which do not have to be consecutive) for the employer; and, must have worked at least 1,250 hours during the 12 months immediately preceding the date of commencement of FMLA leave.

Basic Provisions/Requirements

The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12 months for the following reasons:

  • Birth and care of the employee's child or placement for adoption or foster care of a child with the employee;
  • To care for an immediate family member (spouse, child, parent) who has a serious health condition; or
  • For the employee's own serious health condition.

An employer must maintain group health benefits that an employee was receiving at the time leave began during periods of FMLA leave at the same level and in the same manner as if the employee had continued to work. Under most circumstances, an employee may elect or the employer may require the use of any accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave. FMLA leave may be taken in blocks of time less than the full 12 weeks on an intermittent or reduced leave basis. Taking intermittent leave for the placement for adoption, or foster care of a child is subject to approval by the employer. Intermittent leave taken for the birth and care of a child is also subject to the employer’s approval except for leave relating to the pregnancy which would be leave for a serious health condition.

When leave is foreseeable, an employee must provide the employer with at least 30 days notice of the need for leave or as much notice as is practicable. If the leave is not foreseeable, then notice must be given as soon as practicable. An employer may require medical certification of a serious health condition from the employee’s health care provider, and may require periodic reports during the period of leave of the employee’s status and intent to return to work, as well as "fitness-for-duty" certification upon return to work in appropriate situations.

When the employee returns from FMLA leave, the employee is entitled to be restored to the same or an equivalent job. An equivalent job is one with equivalent pay, benefits, responsibilities, etc. The employee is not entitled to accrue benefits during periods of unpaid FMLA leave, but must be returned to employment with the same benefits at the same levels as existed when leave commenced.

Employers are required to post a notice for employees that outlines the basic provisions of FMLA and are subject to a civil money penalty for willfully failing to post such notice. Employers are prohibited from discriminating against or interfering with employees who take FMLA leave.

Assistance Available

FMLA is administered by the Employment Standards Administration's Wage and Hour Division. More detailed information, including copies of explanatory brochures, may be obtained by contacting the local Wage and Hour offices. In addition, Wage and Hour has developed the Family and Medical leave Act Advisor(http://www.dol.gov/elaws/), which is an Internet online system that answers a variety of commonly asked questions about FMLA including employee eligibility, valid reasons for leave, employee/employer notification responsibilities, and employee rights/benefits.

Penalties

Employees or any person may file complaints with the Employment Standards Administration, U.S. Department of Labor (usually through the nearest office of the Wage and Hour Division). The Secretary may file suit to insure compliance and recover damages if a complaint cannot be resolved administratively. Employees also have private rights of action without involvement of the Department to correct violations and recover damages through the courts.

Relation to State, Local and Other Federal Laws

A number of States have family leave statutes. Nothing in the FMLA supersedes a provision of State law that is more beneficial to the employee, and employers must comply with the more beneficial provision. Under some circumstances, an employee with a disability may also have rights under the Americans with Disabilities Act (enforced by the U.S. Equal Employment Opportunity Commission).

U.S. Department of Labor

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