About the Family Leave Act of 1993

The Family and Medical Leave Act of 1993

By Daniel Karpman Attorney At Law

Overview

The Family and Medical Leave Act (the FMLA), which took effect in 1993, changed the way employers are required to respond to their employees who are experiencing family emergencies or the addition of a new child. The FMLA requires certain employers to give employees up to 12 weeks of unpaid leave to deal with health-related problems affecting themselves or their immediate relatives, or with the birth or adoption of a child. To assist the employee in dealing with such family matters, the law also requires that employers continue health insurance coverage and provide job security.

Employers Affected By The Law

The FMLA only covers employers with at least 50 employees. Both full-time and part-time workers are counted. The law also imposes a geographical restriction. Employees employed at a worksite with fewer than 50 workers are not eligible for benefits unless the company employs at least 50 employees within a 75-mile radius of that site.

Which Employees Are Eligible

Any employee, male or female, who has worked for the employer at least 12 months, and during that time worked at least 1,250 hours (about 25 hours a week) is eligible for FMLA benefits.

The law permits employers to restrict benefits for certain "highly compensated employees." These are salaried employees who are in the company's top 10 percent pay bracket. While entitled to FMLA leave and health care continuation benefits, such employees may be denied job restoration where termination is necessary to prevent substantial and grievous economic injury to the employer's operations.

Leave

Eligible employees may take up to 12 weeks' unpaid leave in any 12-month period for the following reasons:

The law defines "serious health condition" very broadly as an illness, injury, impairment, or physical or mental condition that (1) involves inpatient care in a hospital, hospice or residential medical care facility, or (2) involves continuing treatment by a health care provider.

A "child" means a son or daughter under age 18, but also includes a child over the age of 18 who is incapable of providing self-care due to a physical or mental disability.

For a newborn child or a newly placed adopted or foster child, the employee must take the leave all at once, unless the employer allows the leave to be taken intermittently or agrees to a reduced work schedule.

If the leave is needed to care for a seriously ill family member or for the employee's own medical problems, the employee may request an intermittent or reduced schedule leave.

The employer must allow such an alternate schedule subject to proof of medical necessity.

The employer may require that paid vacation, sick leave and personal leave days count toward the 12 weeks provided by the FMLA.

Notice

An employee is required to give 30-days' notice when practicable. This notice requirement is waived in emergency situations, such as a premature birth or the sudden deterioration in a family member's or the employee's own health condition.

Medical Necessity

The FMLA permits the employer to obtain medical certification of the need for the leave from the employee's health care provider. The employer may periodically require medical recertification during the leave period.

The employer may obtain a second and third opinion, at its own expense, if it questions the validity of the employee's medical certification.

Employer Control Over Schedule

The FMLA requires that companies provide part-time schedules in intermittent leave situations. The law allows the employer to transfer the employee to an alternative "equivalent" position for the duration of the intermittent or reduced work schedule.

Spouses Employed By The Same Company

If both spouses work for the same employer, each is separately entitled to the full 12-week unpaid leave to care for a seriously ill child, to care for his or her own serious illness or to care for the other spouse who is seriously ill. If the leave is needed to care for a new child or to care for a sick parent, the spouses are limited to a single 12-week period.

Job Security

Employees keep their seniority and pension credits accrued prior to the date of leave. Seniority or pension benefits do not accrue during the leave.

Upon return from the leave, the employee must be given his or her own job or an "equivalent" position, including equivalent benefits, pay and other terms and conditions of employment.

An employee's job is not protected, though, if the employer restructures its business and the employee's position would have been eliminated anyway.

Health Care Benefits

The employer is required to provide group health and disability benefits, just as though the employee was not on leave. The employer must continue contributing toward health care benefits as if the employee was actively at work.

If an employee does not return at the end of the leave, the employer can demand that the employee repay the health care premiums paid by the employer during the leave.

However, the employer may not recover those premiums if the employee's failure to return to work is due to a serious health condition of the employee or a family member, or because of other circumstances beyond the employee's control.

Unemployment Compensation Benefits

An employee is not eligible for unemployment compensation while on leave.

Exposure To Liability

Employers should review their leave policies carefully in view of the new family leave act and regulations.

Employees who are terminated or improperly restored to an "equivalent" position in violation of the law may sue for reinstatement and for damages equal to the amount of wages, benefits or other compensation denied or lost because of the violation.

Employees who suffer actual monetary damages as a direct result of the employer's violation of the law, such as the cost of providing care for a seriously ill family member, may sue to recover their losses.

Double damages may be assessed, unless the employer can show it had reasonable grounds for believing that its actions did not violate the law.

The law also awards reasonable attorneys' fees, expert witness fees and costs to prevailing plaintiffs.

Distinctions Between FMLA And Massachusetts Law

The FMLA does not replace any state law that provides greater family or medical leave rights.

The Massachusetts Maternity Leave Statute (Mass. General Laws Chapter 149, Section 105D) applies to employers with at least 6 employees. Under this law, a female worker is entitled to up to 8 weeks of leave for maternity reasons or to adopt a child.

To be eligible, the female employee must have completed the employer's probationary period, if any. If there is no probationary period, the employee must have been employed full-time for at least 3 months.

The leave of absence is paid or unpaid, depending upon the company's disability benefit plan.

Conclusion

Employers should carefully examine the eligibility standards and basic benefit requirements under Massachusetts law and the FMLA, to ensure that the benefits they provide to their employees comply with both laws.

Highlights Of The Act

The information presented in this article is general in nature, and is for informational purposes only. Please consult with an attorney for legal advice with respect to any specific matter.