Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) provides employees who qualify with up to 12 work weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. It also requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. The employer can elect to use the calendar year, a fixed 12-month fiscal year, or a 12-month period prior to or after the commencement of leave as the 12-month period. The Act became effective on August 5, 1993 and applies to all companies who employ 50 or more people. It is primarily administered and enforced by the U.S. Department of Labor's Employment Standards Division, Wage and Hour Division.

ELIGIBILITY FOR FMLA

To qualify for FMLA benefits, an employee must; 1) work for an employer who employees 50 or more people; 2) have worked for that employer for a total of 12 months; 3) have worked at least 1,250 hours over the previous 12 months; 4) 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. This latter stipulation exempts many small business owners from FMLA rules and guidelines.

But while FMLA does not apply to small businesses that employ fewer than 50 people, it does apply to small and mid-size companies that employed 50 or more employees in 20 or more work weeks in the current or preceding calendar year. FMLA also applies to all public agencies, including local, state, and federal employers; large companies; and school administrations.

Leave Entitlement

There are several different situations under which employers subject to FMLA must grant eligible employees unpaid leave from work without penalty. Reasons include:

• Situations in which the employee is unable to work because of illness or other health difficulties.
• Placement with the employee of a child for adoption or foster care.
• Birth and care of the newborn child of the employee.
• Caring for an immediate family member with serious health difficulties (immediate family members are defined as spouse, child, or parent).

In addition, spouses employed by the same company or agency are jointly entitled to a combined total of 12 work weeks of family leave for the birth and care of a newborn child, for placement of a child for adoption or foster care, or to care for a parent suffering from a serious health condition.

Finally, depending on the circumstances, some employees may be able to take leave in blocks of time or by scaling back their normal work schedule. In addition, employers or employees may sometimes choose to use accrued paid leave to cover some or all of the FMLA leave.

Illnesses and Other Conditions Covered Under FMLA

The FMLA was written so that employees who have family members in "serious health condition"—or who themselves are in such condition—can use the law to protect their job during the time that they are on leave. The Department of Labor defines "serious health condition" as an illness, injury, impairment, or physical or mental condition that involves any of the following:

• Any period of incapacity or treatment connected with overnight stays in a hospital or other residential medical care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care.
• Continuing treatment by a health care provider that includes any period of incapacity due to: 1) a health condition (including treatment of, or recovery from) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition; 2) pregnancy or prenatal care; 3) a chronic serious health condition which continues over an extended period of time, requires periodic visits to a doctor or other health care professional, and may involve occasional episodes of incapacity (diabetes, asthma); 4) permanent or long-term conditions for which treatment may not work (cancer, stroke); 5) absences to receive treatments for restorative surgery or for a condition which would likely result in incapacitation for more than three days if not treated (radiation or chemotherapy treatments for cancer).

EMPLOYER REQUIREMENTS UNDER FMLA

Employers who are subject to FMLA regulations must maintain group health insurance coverage for any employee taking FMLA leave whenever that employee already had that insurance. The employer is not allowed to make any changes in the terms of that insurance coverage, either. There are some situations, however, where an employer may be able to recover any insurance premiums that it paid out to maintain health coverage for an employee if that worker fails to return to work from FMLA leave.

In instances where the employee does return from FMLA leave, that employee is entitled to be restored to his or her original job, or to an equivalent job, complete with equivalent pay, benefits, and other terms of employment. Moreover, FMLA stipulates that an employee cannot lose any employment benefit that he or she earned prior to using FMLA leave once the employee returns to work. There are exceptions to the above rules, but they come into play only in extreme circumstances wherein returning an employee to his or her previous station will cause "substantial and grievous economic injury" to the business. Obviously, such circumstances arise only when the company is in deep financial jeopardy.

Employers who are subject to FMLA law are required to post notices that explain the Family and Medical Leave Act in the workplace. These notices are approved by the Secretary of Labor. Companies that willfully violate this requirement are subject to fines. This requirement is part of a general mandate that directs employers to inform employees of all pertinent aspects of FMLA, including employee responsibilities.

THE FIRST SEVEN YEARS OF FMLA

The Bureau of Labor Statistics oversaw two surveys of employers and employees in the year 2000, surveys designed to gather information about the implementation of the FMLA during its first seven years. As of early 2006 no new national-level surveys on the subject have been published.

According to the BLS report, "Family Medical Leave: Evidence from the 2000 survey," 46.9 percent of private-sector employees were covered and eligible for FMLA leave in the year 2000 (eligibility having to do with the employee's tenure with their employer). "One-sixth of all employees (16.5 percent) took leave for family or medical reasons in the 18 months prior to the 2000 survey, about the same percentage as did in the 1995 survey (16.0 percent)" stated the BLS report. In both the 1995 and the 2000 surveys the employee's own health was the most commonly cited reason for taking leave (61.4 percent and 47.2 percent, respectively). The second most commonly cited reason for taking leave in both 1995 and 2000 was for the care of a newborn, newly adopted child, or newly placed foster child (14.3 percent and 17.9 percent, respectively).

STEPS TO SECURING FMLA LEAVE

Employees who wish to take advantage of the Family and Medical Leave Act must adhere to certain steps so as to soften the impact on the businesses where they are employed. Workers using FMLA must first provide 30-day advance notice of their intention to take leave in all instances where advanced notice is possible. In addition, some employers require employees using FMLA to do some or all of the following:

• Provide medical certification supporting the need for leave.
• Provide second or third medical opinions (at the employer's expense)
• Give periodic re-certification of health status.
• Provide periodic reports on employee status and intentions regarding returning to work.
• Adhere to limitations on intermittent leave.

In their article for Entrepreneur, Steven C. Bahls and Jane Easter Bahls admitted that adhering to the FMLA can be difficult for employers, but they also claimed that businesses benefit by retaining good employees. "Keeping a job open for months, tracking the employee's illness, determining if medical certification is adequate, keeping records on which absences are covered and which are not—clearly, it's not easy to administer an FMLA leave and avoid legal trouble," they wrote. "And there remains the possibility of abuse of the system. Still, try to keep in mind what your employees gain from knowing there's a good job waiting on the other side of their problems, and what your company gains by retaining a valued employee."

see also Employee Benefits; Pregnancy in the Workplace

BIBLIOGRAPHY

Bahls, Steven C, and Jane Easter Bahls. "Statute of Liberty." Entrepreneur. January 2001.

The HR Focus Guide to the Family and Medical Leave Act. American Management Association, n.d.

U.S. Department of Labor. Compliance Guide to the Family and Medical Leave Act. 1996.

U.S. Department of Labor. Waldfogel, Jane. "Family and Medical Leave: Evidence from the 2000 surveys." Monthly Labor Review. September 2001.

                                 Hillstrom, Northern Lights

                                 updated by Magee, ECDI

Family and Medical Leave Act of 1993

Twila L. Perry

Congress passed the Family and Medical Leave Act (P.L. 103-3, 107 Stat. 6) to help people who were stressed about trying to balance the competing demands of work and family. The law was signed by President William J. Clinton on February 5, 1993. Experts often refer to the legislation as the "FMLA."

Changes taking place in the American family over the past decades led to the need for the FMLA. With an increasing number of single-parent families and two-parent families in which both parents work, the birth of a child or a serious family illness often placed workers in the position of having to choose between keeping their jobs or providing care to a family member.

Women were especially burdened because they have traditionally had the role of caregiver. Not only have parents sometimes lost time from work to attend to their families, but their own medical problems could lead to missed work days as well. These absences from work caused problems with employers who needed a reliable work force; too many absences due to illness, therefore, could get an employee fired. The FMLA allows employees to take unpaid leaves of absence from their jobs in these kinds of situations. It provides a minimum level of job security for people trying to balance the demands of their jobs with family obligations.

Section 2601 of the FMLA states the purpose of the law:

... to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote the national interests in preserving family integrity ... to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition ... to promote the goal of equal employment opportunity for men and women.

Not everyone was in favor passing the FMLA; legislators extensively debated the proposed bill in Congress before it was passed. While many legislators thought the FMLA was needed to help families, some argued the FMLA would unnecessarily interfere with relationships between employers and employees and would hurt small businesses. Others argued that the leaves of absence taken by some workers would place unfair burdens of additional work on others who remained on the job.

The Supreme Court has noted that the power of Congress to pass the FMLA comes from two different sections of the U.S. Constitution: the Commerce Clause and the Fourteenth Amendment. The Commerce Clause gives Congress the power to regulate businesses; the Fourteenth Amendment protects citizens from discrimination, including discrimination on the basis of gender. Section 5 of the Fourteenth Amendment gives Congress the power to adopt laws to enforce that Amendment.

DETAILS OF THE LAW

The FMLA allows employees to take up to twelve weeks of unpaid leave in any twelve-month period for the birth or adoption of a child, to care for a family member, or in the event of the employee's own serious health problems. The employee can take the leave in a continuous block or by working on a reduced schedule. In some circumstances the employee can take the leave on an intermittent, or off-and-on, basis. Finally, the employee can take leave under the FMLA in addition to other paid time off that might be available, such as vacation time.

An employee must, however, follow certain procedures in order to take FMLA leave. If the employee knows in advance that he or she will need a leave, he or she must give the employer thirty days notice. If the situation is an emergency, the employee must notify the employer as soon as it is practical; employers can also require that the employee submit written medical certification to verify any claimed health condition.

While an employee is on leave, the employer must maintain benefits for the individual such as group health care. If the employee was making payments for such benefits, the employee must continue those payments during the leave. At the end of the leave, the employee is entitled to return to the same job or to an equivalent job with the employer.

Not all employees are entitled to take leaves under the FMLA. The law only covers employees who have been working for their employers for at least twelve months and who have worked for at least 1,250 hours. State and local government employees are covered by the law, while private employers must offer the FMLA if they have fifty or more employees for each work day for at least twenty work weeks during the year.

LITIGATION AND CONTROVERSY

Workers have sued employers under the FMLA in a number of contexts. Examples of the kinds of issues courts have decided include whether an employer retaliated against an employee for taking a FMLA leave, if the job given to an employee upon return from leave was an equivalent job, whether an employee gave proper notice to an employer prior to a leave, and if an illness qualified as a "serious illness" under the FMLA.

The U.S. Supreme Court considered a case under the FMLA for the first time in 2002. In Ragsdale v. Wolverine World Wide, Inc., the Department of Labor penalized an employer who failed to tell an employee the time she had taken off as unpaid leave counted as FMLA leave. The Supreme Court, however, ruled that the penalty was not valid. Even though the Department of Labor has the power to supervise the implementation of the FMLA, this case suggested it still was not completely clear in what it could and could not do in order to enforce this law.

In the 2003 case Nevada Department of Human Resources v. Hibbs, the Supreme Court upheld Congress's power to allow private suits against the states before the FMLA. The Court said that the FMLA protected against such discrimination in employment. Although the FMLA addresses some concerns employees have in trying to balance work with family, the benefits it gives are limited. The FMLA does not provide for paid leave; so the only workers who can take advantage of the law are those who can afford to take an unpaid leave. Some people take the position the FMLA should provide for paid leaves and that Congress should expand it to cover jobs where twenty or more workers are employed—rather than limiting it to employers with fifty or more employees. Experts also suggest that the FMLA should cover other family situations, such as doctor's appointments and parent-teacher conferences, situations that often require parents to take time off from work. It is likely that this debate over just how much the government should provide to families will continue well into the future.

See also: Aid to Dependent Children ; Pregnancy Discrimination Act .

BIBLIOGRAPHY

Dunston, Robert, and Frank Robins. FMLA: A Practical Guide to Implementing the FMLA. College and University Professional Association for Human Resources, 1994.

Dunston, Robert, and Frank Robins. Practical Guide to Implementing the FMLA: 1996 Supplement. College and University Professional Association for Human Resources, 1996.

Schwartz, Robert M. The FMLA Handbook: A Union Guide to the FMLA. Work Rights >Project, 2001.

Wever, Kirsten S. "Changing Work in America: The Family and Medical Leave Act." <http://www.radcliffe.edu/pubpol/cwia_kw.html>.

Williams, Anne H. FMLA Leave: A Guide Through the Legal Labyrinth. M. Lee Smith Publishers and Printers, 2001.

INTERNET RESOURCES

U.S. Department of Justice. Family and Medical Leave Act (FMLA) Fact Sheet. <http://www.usdoj.gov/jmd/ps/fmla/htm>.

U.S. Department of Labor. Family and Medical Leave Act Fact Sheet. <http://www.dol.gov/dol/esa/faml.htm>.

FAMILY AND MEDICAL LEAVE ACT

President Bill Clinton's (1993–) first legislative action after taking office was the Family and Medical Leave Act (FMLA), which went into effect August 5, 1993. According to the Commission on Family and Medical Leave, the act was developed to "support families in their efforts to strike a workable balance between the competing demands of the workplace and the home." This action was significant because previously, the United States was the only industrialized country that did not guarantee job protection when employees needed work leave that exceeded company vacation or sick-leave allowances.

The FMLA, which applies to all school, public agency and private sector employers with 50 or more employees, allows up to 12 weeks of unpaid leave in a 12-month period for certain family and medical reasons. The law also requires employers to maintain the employees' health benefits during leave and to restore the employee's job after the leave. Under FMLA guidelines the 12-week leave is allowed for the birth of a child; adoption or foster care of a child; care for a spouse, child or parent with a serious health condition; or for employees who cannot work due to a serious health condition.

After legislation was passed in 1993 conflicting reports emerged about the effectiveness of FMLA. In 1996 a government-sponsored Report to Congress, called "A Workable Balance," concluded that "the FMLA has not been the burden to business that some feared. For most employers compliance is easy, the costs are non-existent or small, and the effects are minimal." As a result of this report, an amendment was introduced in 1997 to expand the FMLA. The amendment extended coverage to 13 million more employees by requiring employers with 25 or more employees to provide FMLA benefits in addition to those with 50 or more employees already covered by existing legislation. In 1997, a second independent survey contradicted the Report to Congress with evidence that the FMLA was fraught with compliance and implementation problems. This study resulted in action by a bipartisan group in 1998 to introduce the Family and Medical Leave Clarification Act, an amendment that would make the FMLA easier for employers to understand and use.

What could account for the difference in opinion between the two surveys? According to some experts it may have been a matter of timing. The Report to Congress survey was conducted between January 1994 and June 1995, before the Department of Labor implemented final regulations. These regulations included several changes, such as the definition of a serious health condition, which made the mandate more difficult to manage. Indeed, when Human Resources professionals were asked in the 1997 independent survey about changes that would make the FMLA more userfriendly, respondents cited tightening the definition of a serious health condition. Some stated that FMLA actually cost companies money because it was costly and time-consuming to contest poorly documented medical claims. Also, some employers noted an increase in absence rates as a result of FMLA.

While the controversy continued regarding the FMLA, both sides agreed that the legislation was well-intentioned. Though most members of the Labor Policy Association (LPA), a Washington, DC-based employer association that focused on employment policy issues, considered the law an inconvenience rather than a threat to business, they would have liked the problems with FMLA corrected before it was expanded.

See also: Women in the Workplace

FURTHER READING

Papa, Jeri White, Richard E. Kopelman, and Gillian Glynn. "Sizing Up the FMLA." Workforce, August 1998.

Raizel, Michelow. "Family Leave Act Presenting Problems." Crain's Cleveland Business, November 3, 1997.

Ruhm, Christopher J. "Policy Watch: The Family and Medical Leave Act." Journal of Economic Perspectives, Summer 1997.

Unowsky, Keri G. "The FMLA at Five Years: The Courts Struggle to Define the Parameters." Employee Relations Law Journal, Autumn, 1998.

"The Family and Medical Leave Act Summary of Provisions." Congressional Digest, May 1997.

FAMILY AND MEDICAL LEAVE ACT

FAMILY AND MEDICAL LEAVE ACT (FMLA) requires employers to provide up to twelve weeks, or 480 hours, of unpaid leave annually to any employee for any serious medical condition of the employee or a member of the employee's immediate family, or for the birth or adoption of a child. The act was first introduced into Congress in 1985. It passed both houses of Congress, but was vetoed by President George Bush in 1991 and 1992 before being signed by President Bill Clinton in 1993.

The FMLA covers all public employers and private companies with more than fifty employees. A central component of FMLA is the requirement that employers who provide their workers with health insurance must maintain group health coverage for any employee while on leave. However, employers may require workers to prepay premiums or pay while on leave. The FMLA is enforced by the Wage and Hour Division of the Department of Labor. FMLA rights are in addition to paid sick leaves, but employers may force workers to use vacation or personal leaves after FMLA benefits expire. Employers are forbidden to deny benefits to or discharge those employees using FMLA benefits. Some rights coincide with the Americans with Disabilities Act of 1990, although the latter covers employers with fifteen or more workers and requires companies to provide reasonable conditions for disabled applicants.

BIBLIOGRAPHY

Elving, Ronald. Conflict and Compromise: How Congress Makes the Law. New York: Simon and Schuster, 1995.

Lenhoff, Donna, and Claudia Withers. "Implementation of the Family and Medical Leave Act: Toward the Family-Friendly Workplace." American University Journal of Gender and Law 3 (Fall 1994): 39.

"Symposium. Unbending Gender: Why Family and Work Conflict and What to Do About It." The American University Law Review 49 (April 2000).

Wisensale, Steven K. "The White House and Congress on Child Care and Family Leave Policy: From Carter to Clinton." Policy Studies Journal 25, no. 10 (1997): 75–86.

Graham RussellHodges/c. p.

See alsoLabor, Department of ; Labor Legislation and Administration ; Pregnancy Discrimination Act ; Women's Rights Movement: The Twentieth Century .