ADVISING YOUR CLIENTS ON THE FEDERAL FAMILY AND MEDICAL LEAVE ACT If you counsel business of any size, or employees, you
may be called upon for advice concerning the Federal
Family and Medical Leave Act, and how it impacts your
clients. This activity will give you a brief introduction to
the provisions of: THE FEDERAL FAMILY AND MEDICAL LEAVE
ACT OF 1993 The U.S. Department of Labor's Employment Standards
Administration, Wage and Hour Division, administers and
enforces the Family and Medical Leave Act (FMLA) for all
private, state and local government employees, and some
federal employees. Most Federal and certain congressional
employees are also covered by the law and are subject to
the jurisdiction of the U.S. Office of Personnel
Management or the Congress. FMLA became effective on August 5, 1993, for most
employers. If a collective bargaining agreement (CBA) was
in effect on that date, FMLA became effective on the
expiration date of the CBA or February 5, 1994, whichever
was earlier. FMLA entitles eligible employees to take up
to 12 weeks of unpaid, job-protected leave in a 12-month
period for specified family and medical reasons. The
employer may elect to use the calendar year, a fixed
12-month leave or fiscal year, or a 12-month period prior
to or after the commencement of leave as the 12-month
period. The law contains provisions on employer coverage;
employee eligibility for the law's benefits; entitlement
to leave, maintenance of health benefits during leave,
and job restoration after leave; notice and certification
of the need for FMLA leave; and, protection for employees
who request or take FMLA leave. The law also requires
employers to keep certain records. EMPLOYER COVERAGE
FMLA applies to all: §
public agencies, including state, local and federal
employers, local education agencies (schools), and
§
private-sector employers who employed 50 or more
employees in 20 or more workweeks in the current or
preceding calendar year and who are engaged in
commerce or in any industry or activity affecting
commerce — including joint employers and successors
of covered employers. EMPLOYEE ELIGIBILITY
To be eligible for FMLA benefits, an employee must: 1.
work for a covered employer; 2.
have worked for the employer for a total of 12 months*;
3.
have worked at least 1,250 hours over the previous 12
months*;
and 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. ·
Click the following link for the rules regarding
returning reservists: ·
special
rules for returning reservists under USERRA. LEAVE ENTITLEMENT
A covered employer must grant an eligible employee up
to a total of 12 workweeks of unpaid leave during
any 12-month period for one or more of the following
reasons: §
for the birth and care of the newborn child of the
employee; §
for placement with the employee of a son or daughter for
adoption or foster care; §
to care for an immediate family member (spouse, child, or
parent) with a serious health condition; or §
to take medical leave when the employee is unable to work
because of a serious health condition. Spouses employed by the same employer are jointly
entitled to a combined total of 12 work-weeks of
family leave for the birth and care of the newborn child,
for placement of a child for adoption or foster care, and
to care for a parent who has a serious health condition. Leave for birth and care, or placement for adoption or
foster care must conclude within 12 months of the birth
or placement. Under some circumstances, employees may take FMLA
leave intermittently — which means taking leave in
blocks of time, or by reducing their normal weekly or
daily work schedule. §
If FMLA leave is for birth and care or placement for
adoption or foster care, use of intermittent leave is
subject to the employer's approval. §
FMLA leave may be taken intermittently whenever medically
necessary to care for a seriously ill family member,
or because the employee is seriously ill and unable to
work. Also, subject to certain conditions, employees or
employers may choose to use accrued paid leave
(such as sick or vacation leave) to cover some or all of
the FMLA leave. The employer is responsible for designating if an
employee's use of paid leave counts as FMLA leave, based
on information from the employee. "Serious health condition" means an
illness, injury, impairment, or physical or mental
condition that involves either: §
any period of incapacity or treatment connected with
inpatient care (i.e., an overnight stay) in a hospital,
hospice, or residential medical-care facility, and any
period of incapacity or subsequent treatment in
connection with such inpatient care; or §
Continuing treatment by a health care provider which
includes any period of incapacity (i.e., inability to
work, attend school or perform other regular daily
activities) due to: (1) A health condition (including treatment therefor,
or recovery therefrom) lasting more than three
consecutive days, and any subsequent treatment or period
of incapacity relating to the same condition, that also
includes: §
treatment two or more times by or under the supervision
of a health care provider; or §
one treatment by a health care provider with a continuing
regimen of treatment; or (2) Pregnancy or prenatal care. A visit to the health
care provider is not necessary for each absence; or
(3) A chronic serious health condition which continues
over an extended period of time, requires periodic visits
to a health care provider, and may involve occasional
episodes of incapacity (e.g., asthma, diabetes). A visit
to a health care provider is not necessary for each
absence; or (4) A permanent or long-term condition for which
treatment may not be effective (e.g., Alzheimer's, a
severe stroke, terminal cancer). Only supervision by a
health care provider is required, rather than active
treatment; or (5) Any absences to receive multiple treatments for
restorative surgery or for a condition which would likely
result in a period of incapacity of more than three days
if not treated (e.g., chemotherapy or radiation
treatments for cancer). "Health care provider" means: §
doctors of medicine or osteopathy authorized to practice
medicine or surgery by the state in which the doctors
practice; or §
podiatrists, dentists, clinical psychologists,
optometrists and chiropractors (limited to manual
manipulation of the spine to correct a subluxation as
demonstrated by X-ray to exist) authorized to practice,
and performing within the scope of their practice, under
state law; or §
nurse practitioners, nurse-midwives and clinical social
workers authorized to practice, and performing within the
scope of their practice, as defined under state law; or
§
Christian Science practitioners listed with the First
Church of Christ, Scientist in Boston, Massachusetts; or
§
Any health care provider recognized by the employer or
the employer's group health plan benefits manager. MAINTENANCE OF HEALTH BENEFITS
A covered employer is required to maintain group
health insurance coverage for an employee on FMLA leave
whenever such insurance was provided before the leave was
taken and on the same terms as if the employee had
continued to work. If applicable, arrangements will need
to be made for employees to pay their share of health
insurance premiums while on leave. In some instances, the employer may recover premiums
it paid to maintain health coverage for an employee who
fails to return to work from FMLA leave. JOB RESTORATION
Upon return from FMLA leave, an employee must be
restored to the employee's original job, or to an
equivalent job with equivalent pay, benefits, and other
terms and conditions of employment. In addition, an employee's use of FMLA leave cannot
result in the loss of any employment benefit that the
employee earned or was entitled to before using
FMLA leave, nor be counted against the employee under a
"no fault" attendance policy. Under specified and limited circumstances where
restoration to employment will cause substantial and
grievous economic injury to its operations, an employer
may refuse to reinstate certain highly-paid "key"
employees after using FMLA leave during which health
coverage was maintained. In order to do so, the employer
must: §
notify the employee of his/her status as a
"key" employee in response to the employee's
notice of intent to take FMLA leave; §
notify the employee as soon as the employer decides it
will deny job restoration, and explain the reasons for
this decision; §
offer the employee a reasonable opportunity to return to
work from FMLA leave after giving this notice; and
§
make a final determination as to whether reinstatement
will be denied at the end of the leave period if the
employee then requests restoration. A "key" employee is a salaried
"eligible" employee who is among the highest
paid ten percent of employees within 75 miles of the work
site. NOTICE AND CERTIFICATION
Employees seeking to use FMLA leave are required to
provide 30-day advance notice of the need to take FMLA
leave when the need is foreseeable and such notice is
practicable. Employers may also require employees to provide: §
medical certification supporting the need for leave due
to a serious health condition affecting the employee or
an immediate family member; §
second or third medical opinions (at the employer's
expense) and periodic recertification; and §
periodic reports during FMLA leave regarding the
employee's status and intent to return to work. When intermittent leave is needed to care for an
immediate family member or the employee's own illness,
and is for planned medical treatment, the employee must
try to schedule treatment so as not to unduly disrupt the
employer's operation. Covered employers must post a notice approved by the
Secretary of Labor explaining rights and responsibilities
under FMLA. An employer that willfully violates this
posting requirement may be subject to a fine of up to
$100 for each separate offense. Also, covered employers must inform employees of their
rights and responsibilities under FMLA, including giving
specific written information on what is required of the
employee and what might happen in certain circumstances,
such as if the employee fails to return to work after
FMLA leave. UNLAWFUL ACTS
It is unlawful for any employer to interfere with,
restrain, or deny the exercise of any right provided by
FMLA. It is also unlawful for an employer to discharge or
discriminate against any individual for opposing any
practice, or because of involvement in any proceeding,
related to FMLA. ENFORCEMENT
The Wage and Hour Division investigates complaints. If
violations cannot be satisfactorily resolved, the U.S.
Department of Labor may bring action in court to compel
compliance. Individuals may also bring a private civil
action against an employer for violations. OTHER PROVISIONS
Special rules apply to employees of local education
agencies. Generally, these rules provide for FMLA
leave to be taken in blocks of time when intermittent
leave is needed or the leave is required near the end of
a school term. Salaried executive, administrative, and professional
employees of covered employers who meet the Fair Labor
Standards Act (FLSA) criteria for exemption from minimum
wage and overtime under Regulations, 29 CFR Part 541, do
not lose their FLSA-exempt status by using any unpaid
FMLA leave. This special exception to the "salary
basis" requirements for FLSA's exemption extends
only to "eligible" employees' use of leave
required by FMLA. The FMLA does not affect any other federal or state
law which prohibits discrimination, nor supersede any
state or local law which provides greater family or
medical leave protection. Nor does it affect an
employer's obligation to provide greater leave rights
under a collective bargaining agreement or employment
benefit plan. The FMLA also encourages employers to
provide more generous leave rights. FURTHER INFORMATION
The final rule implementing FMLA is contained in the
January 6, 1995, Federal Register. For more information,
please contact the nearest office of the Wage and Hour
Division, listed in most telephone directories under
U.S. Government, Department of Labor. Family and
Medical Leave Family and
Medical Leave Act of 1993 (FMLA) Who is Covered The Family and Medical Leave Act (FMLA) provides a
means for employees to balance their work and family
responsibilities by taking unpaid leave for certain
reasons. The Act is intended to promote the stability and
economic security of families as well as the nation's
interest in preserving the integrity of families. The FMLA applies to any employer in the private sector
who engages 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 in the
current or preceding calendar year. The law covers all public agencies (state and local
governments) and local education agencies (schools,
whether public or private). These employers do not need
to meet the "50 employee" test. Title II of
FMLA covers most federal employees, who are subject to
regulations issued by the Office of Personnel Management. To be eligible for FMLA leave, an individual must (1)
be employed by a covered employer and work at a worksite
within 75 miles of which that employer employs at least
50 people; (2) have worked at least 12 months (which do
not have to be consecutive) for the employer; and (3)
have worked at least 1,250 hours during the 12 months
immediately before the date FMLA leave begins. Basic Provisions/Requirements The FMLA provides an entitlement of up to 12 weeks of
job-protected, unpaid leave during any 12-month period
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; §
Care of an immediate family member (spouse, child,
parent) who has a serious health condition; or §
Care of the employee's own serious health condition. If an employee was receiving group health benefits
when leave began, an employer must maintain them at the
same level and in the same manner during periods of FMLA
leave as if the employee had continued to work. Usually,
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. Employees may take FMLA leave in blocks of time less
than the full 12 weeks on an intermittent or reduced
leave basis when medically necessary. Taking intermittent
leave for the placement, adoption, or foster care of a
child is subject to the employer's approval. Intermittent
leave taken for the birth and care of a child is also
subject to the employer's approval except for
pregnancy-related leave that would be leave for a serious
health condition. When the need for leave is foreseeable, an employee
must give the employer at least 30 days notice, or as
much notice as is practicable. When the leave is not
foreseeable, the employee must provide such notice as
soon as possible. An employer may require medical certification of a
serious health condition from the employee's health care
provider. An employer may also 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. An employee who returns from FMLA leave is entitled to
be restored to the same or an equivalent job (defined as
one with equivalent pay, benefits, responsibilities,
etc.) The employee is not entitled to accrue benefits
during periods of unpaid FMLA leave, but the employer
must return him or her to employment with the same
benefits at the same levels as existed when leave began. Employers are required to post a notice for employees
outlining the basic provisions of FMLA and are subject to
a $100 civil money penalty per offense for willfully
failing to post such notice. Employers are prohibited
from discriminating against or interfering with employees
who take FMLA leave. Employee Rights The FMLA provides that eligible employees of covered
employers have a right to take up to 12 weeks of
job-protected leave in any 12-month period for qualifying
events without interference or restraint from their
employers. The FMLA also gives employees the right to
file a complaint with the Wage and Hour Division, file a
private lawsuit under the Act (or cause a complaint or
lawsuit to be filed), and testify or cooperate in other
ways with an investigation or lawsuit without being fired
or discriminated against in any other manner. Compliance Assistance Available The Wage and Hour Division of the Employment Standards
Administration administers FMLA. More detailed
information, including copies of explanatory brochures,
may be obtained by contacting the local Wage
and Hour offices. In addition, the Wage and Hour
Division has developed the elaws Family and
Medical Leave Act Advisor, which is an online
resource that answers a variety of commonly asked
questions about FMLA, including employee eligibility,
valid reasons for leave, notification responsibilities of
employers and employees, and rights and benefits of
employees. Compliance assistance information is also
available from the Wage
and Hour Division's Web site. Penalties/Sanctions Employees and other persons may file complaints with
the Employment Standards Administration (usually through
the nearest office of the Wage and Hour Division). The
Department of Labor may file suit to ensure compliance
and recover damages if a complaint cannot be resolved
administratively. Employees also have private rights of
action, without involvement of the Department of Labor,
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 have
rights under the Americans with Disabilities Act. Frequently Asked Questions
and Answers Q: How much leave am I entitled to under FMLA? If you are an "eligible"
employee, you are entitled to 12 weeks of leave for
certain family and medical reasons during a 12-month
period. Q: How is the 12-month period calculated under
FMLA? Employers may select one of four options for
determining the 12-month period: §
the calendar year; §
any fixed 12-month "leave year" such as a
fiscal year, a year required by state law, or a year
starting on the employee’s "anniversary"
date; §
the 12-month period measured forward from the date any
employee’s first FMLA leave begins; or §
a "rolling" 12-month period measured backward
from the date an employee uses FMLA leave. Q: Does the law guarantee paid time off? No. The FMLA only requires unpaid leave.
However, the law permits an employee to elect, or the
employer to require the employee, to use accrued paid
leave, such as vacation or sick leave, for some or all of
the FMLA leave period. When paid leave is substituted for
unpaid FMLA leave, it may be counted against the 12-week
FMLA leave entitlement if the employee is properly
notified of the designation when the leave begins. Q: Does workers’ compensation leave count
against an employee’s FMLA leave entitlement? It can. FMLA leave and workers’ compensation
leave can run together, provided the reason for the
absence is due to a qualifying serious illness or injury
and the employer properly notifies the employee in
writing that the leave will be counted as FMLA leave. Q: Can the employer count leave taken due to
pregnancy complications against the 12 weeks of FMLA
leave for the birth and care of my child? Yes. An eligible employee is entitled to a total of 12
weeks of FMLA leave in a 12-month period. If the employee
has to use some of that leave for another reason,
including a difficult pregnancy, it may be counted as
part of the 12-week FMLA leave entitlement. Q: Can the employer count time on maternity
leave or pregnancy disability as FMLA leave? Yes. Pregnancy disability leave or maternity leave for
the birth of a child would be considered qualifying FMLA
leave for a serious health condition and may be counted
in the 12 weeks of leave so long as the employer properly
notifies the employee in writing of the designation. Q: If an employer fails to tell employees that
the leave is FMLA leave, can the employer count the time
they have already been off against the 12 weeks of FMLA
leave? In most situations, the employer cannot count leave as
FMLA leave retroactively. Remember, the employee must be
notified in writing that an absence is being designated
as FMLA leave. If the employer was not aware of the
reason for the leave, leave may be designated as FMLA
leave retroactively only while the leave is in progress
or within two business days of the employee’s return
to work. Q: Who is considered an immediate "family
member" for purposes of taking FMLA leave? An employee’s spouse, children (son or daughter),
and parents are immediate family members for purposes of
FMLA. The term "parent" does not include a
parent "in-law". The terms son or daughter do
not include individuals age 18 or over unless they are
"incapable of self-care" because of mental or
physical disability that limits one or more of the
"major life activities" as those terms are
defined in regulations issued by the Equal Employment
Opportunity Commission (EEOC) under the Americans
With Disabilities Act (ADA). Q: May I take FMLA leave for visits to a
physical therapist, if my doctor prescribes the therapy? Yes. FMLA permits you to take leave to receive
"continuing treatment by a health care
provider," which can include recurring absences for
therapy treatments such as those ordered by a doctor for
physical therapy after a hospital stay or for treatment
of severe arthritis. Q: Which employees are eligible to take FMLA
leave? Employees are eligible to take FMLA leave if they have
worked for their employer for at least 12 months, and
have worked for at least 1,250 hours over the previous 12
months, and work at a location where at least 50
employees are employed by the employer within 75 miles. Q: Do the 12 months of service with the employer
have to be continuous or consecutive? No. The 12 months do not have to be continuous or
consecutive; all time worked for the employer is counted. Q: Do the 1,250 hours include paid leave time or
other absences from work? No. The 1,250 hours include only those hours actually
worked for the employer. Paid leave and unpaid leave,
including FMLA leave, are not included. Q: How do I determine if I have worked 1,250
hours in a 12-month period? Your individual record of hours worked would be used
to determine whether 1,250 hours had been worked in the
12 months prior to the commencement of FMLA leave. As a
rule of thumb, the following may be helpful for
estimating whether this test for eligibility has been
met; §
24 hours worked in each of the 52 weeks of the year; or §
over 104 hours worked in each of the 12 months of the
year;or §
40 hours worked per week for more than 31 weeks (over
seven months) of the year. Q: Do I have to give my employer my medical
records for leave due to a serious health condition? No. You do not have to provide medical records. The
employer may, however, request that, for any leave taken
due to a serious health condition, you provide a medical
certification confirming that a serious health condition
exists. Q: Can my employer require me to return to work
before I exhaust my leave? Subject to certain limitations, your employer may deny
the continuation of FMLA leave due to a serious health
condition if you fail to fulfill any obligations to
provide supporting medical certification. The employer
may not, however, require you to return to work early by
offering you a light duty assignment. Q: Are there any restrictions on how I spend my
time while on leave? Employers with established policies regarding outside
employment while on paid or unpaid leave may uniformly
apply those policies to employees on FMLA leave.
Otherwise, the employer may not restrict your activities.
The protections of FMLA will not, however, cover
situations where the reason for leave no longer exists,
where the employee has not provided required notices or
certifications, or where the employee has misrepresented
the reason for leave. Q: Can my employer make inquiries about my leave
during my absence? Yes, but only to you. Your employer may ask you
questions to confirm whether the leave needed or being
taken qualifies for FMLA purposes, and may require
periodic reports on your status and intent to return to
work after leave. Also, if the employer wishes to obtain
another opinion, you may be required to obtain additional
medical certification at the employer’s expense, or
rectification during a period of FMLA leave. The employer
may have a health care provider representing the employer
contact your health care provider, with your permission,
to clarify information in the medical certification or to
confirm that it was provided by the health care provider.
The inquiry may not seek additional information
regarding your health condition or that of a family
member. Q: Can my employer refuse to grant me FMLA
leave? If you are an "eligible" employee who has
met FMLA’s notice and certification requirements
(and you have not exhausted your FMLA leave entitlement
for the year), you may not be denied FMLA leave. Q: Will I lose my job if I take FMLA leave? Generally, no. It is unlawful for any employer to
interfere with or restrain or deny the exercise of any
right provided under this law. Employers cannot use the
taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions or disciplinary
actions; nor can FMLA leave be counted under "no
fault" attendance policies. Under limited
circumstances, an employer may deny reinstatement to work
- but not the use of FMLA leave - to certain highly-paid,
salaried ("key") employees. Q: Are there other circumstances in which my
employer can deny me FMLA leave or reinstatement to my
job? In addition to denying reinstatement in certain
circumstances to "key" employees, employers are
not required to continue FMLA benefits or reinstate
employees who would have been laid off or otherwise had
their employment terminated had they continued to work
during the FMLA leave period as, for example, due to a
general layoff. Employees who give unequivocal notice that they do not
intend to return to work lose their entitlement to FMLA
leave. Employees who are unable to return to work and have
exhausted their 12 weeks of FMLA leave in the designated
"12 month period" no longer have FMLA
protections of leave or job restoration Under certain circumstances, employers who advise
employees experiencing a serious health condition that
they will require a medical certificate of fitness for
duty to return to work may deny reinstatement to an
employee who fails to provide the certification, or may
delay reinstatement until the certification is submitted. Q: Can my employer fire me for complaining about
a violation of FMLA? No. Nor can the employer take any other adverse
employment action on this basis. It is unlawful for any
employer to discharge or otherwise discriminate against
an employee for opposing a practice made unlawful under
FMLA. Q: Does an employer have to pay bonuses to
employees who have been on FMLA leave? The FMLA requires that employees be restored to the
same or an equivalent position. If an employee was
eligible for a bonus before taking FMLA leave, the
employee would be eligible for the bonus upon returning
to work. The FMLA leave may not be counted against the
employee. For example, if an employer offers a perfect
attendance bonus, and the employee has not missed any
time prior to taking FMLA leave, the employee would still
be eligible for the bonus upon returning from FMLA leave. On the other hand, FMLA does not require that
employees on FMLA leave be allowed to accrue benefits or
seniority. For example, an employee on FMLA leave might
not have sufficient sales to qualify for a bonus. The
employer is not required to make any special
accommodation for this employee because of FMLA. The
employer must, of course, treat an employee who has used
FMLA leave at least as well as other employees on paid
and unpaid leave (as appropriate) are treated. Q: Under what circumstances is leave designated
as FMLA leave and counted against the employee's total
entitlement?
§
the employer is awaiting receipt of the medical
certification to confirm the existence of a serious
health condition; §
the employer was unaware that leave was for an FMLA
reason, and subsequently acquires information from the
employee such as when the employee requests additional or
extensions of leave; or, §
the employer was unaware that the leave was for an FMLA
reason, and the employee notifies the employer within two
days after return to work that the leave was FMLA leave. Q: Can my employer count FMLA leave I take
against a no fault absentee policy? No. Please return to the Main
Menu for more information on FMLA. LONGER
SUMMARY; MORE DETAILS: The Family and Medical Leave Act The
Family and Medical Leave Act ("FMLA")
provides certain employees with up to 12 workweeks of
unpaid, job-protected leave a year, and requires group
health benefits to be maintained during the leave as if
employees continued to work instead of taking leave. This
Compliance Guide summarizes the FMLA provisions
and regulations1,
and provides answers to the most frequently asked
questions. More detail on the FMLA may be found in the
regulations (29
CFR Part 825). Summary
Purposes
of the FMLA Notice
Questions
and Answers Summary
The FMLA became effective August 5, 1993, for
most employers and employees. (For those covered by a
collective bargaining agreement (CBA) in effect on that
date, the FMLA became effective on the expiration of the
CBA or February 5, 1994, whichever was earlier.) This law covers only certain employers; affects only
those employees eligible for the protections of the law;
involves entitlement to leave, maintenance of health
benefits during leave, and job restoration after leave;
sets requirements for notice and certification of the
need for FMLA leave; and protects employees who request
or take FMLA leave. The law also includes certain
employer recordkeeping requirements. Purposes of the FMLA
Employer
Coverage Employee
Eligibility Leave
Entitlement The FMLA allows employees to balance their work and
family life by taking reasonable unpaid leave for certain
family and medical reasons. The FMLA seeks to accomplish
these purposes in a manner that accommodates the
legitimate interests of employers, and minimizes the
potential for employment discrimination on the basis of
gender, while promoting equal employment opportunity for
men and women. Employer Coverage
FMLA applies to all: §
public agencies, including State, local and Federal
employers, and local education agencies (schools); and, §
private sector employers who employ 50 or more employees
for at least 20 workweeks in the current or preceding
calendar year ¾ including joint employers and successors
of covered employers. For FMLA purposes, most Federal and Congressional
employees are under the jurisdiction of the U.S. Office
of Personnel Management (OPM) or the Congress. Employee Eligibility
To be eligible for FMLA leave, an employee must
work for a covered employer and: §
have worked for that employer for at least 12 months; and
§
have worked at least 1,250 hours during the 12 months
prior to the start of the FMLA leave; and, §
work at a location where at least 50 employees are
employed at the location or within 75 miles of the
location.
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State
Labor OfficesCommissioners, Directors, and
Secretaries
This is a list of all states and their labor
office contact information |
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Federal vs. State Family and Medical Leave Laws
These pages compare the provisions
of the Federal Family and Medical Leave Act (FMLA) with
similar statutes that have been enacted by 11 states (California,
Connecticut,
Hawaii,
Maine,
Minnesota,
New
Jersey, Oregon,
Rhode
Island, Vermont,
Washington,
and Wisconsin)
and the District
of Columbia. Unless noted, the comparison only
reflects the statutes that have been enacted by the
states, not regulations that may have been enacted by the
responsible state agency. For example, the Federal Act
and a state statute may use an identical term like
"serious health condition," but DOL and the
state agency may define that term somewhat differently in
their regulations. In preparing the tables for each state
(as discussed below), however, we only have compared the
key provisions of the Federal FMLA with each State’s
statutory provisions.
STATE vs FED COMPARISONS:
CALIF:
Federal vs. California Family and Medical Leave Laws
SPECIAL NOTE: On September 23, 2002, the
governor signed legislation that will allow employees to
take partially paid family leave beginning after July 1,
2004. This paid family leave program will allow workers
to take up to six weeks off to care for a newborn, a
newly adopted child, or ill family member. Under this new
law, employees will be eligible to receive 55 percent of
their wages during their absence, up to a maximum of
$728.00 per week. These contributions will begin in
January 2004. Unlike the unpaid family leave program that
exists under the California Family Rights Act, all
employers are covered by this legislation, not just those
with 50 or more employees. However, also unlike the
unpaid family leave program, businesses with under 50
employees are not required to hold a job for a worker who
goes on paid family leave.
|
FEDERAL
ELEMENTS |
STATE
ELEMENTS |
| Employer
Covered |
Private
Employers of 50 or more Employees in at least 20
weeks of the current or preceding year Public
agencies, including state, local, and Federal
Employers Local education agencies covered under special
provisions |
Anyone
who directly employs 50 or more Employees The
state and any political or civil subdivision of
the state and cities No special provision for education agencies |
| Employees
Eligible |
Worked
for Employer for at least 12 months - which need
not be consecutive; worked at least 1,250 hours
for Employer during 12 months preceding leave;
and employed at Employer worksite with 50 or more
Employees or within 75 miles of Employer
worksites with a total of 50 or more Employees |
Similar
to Federal provision, including worksite proviso |
| Leave
Amount |
Up
to a total of 12 weeks during a 12-month period;
however, leave for birth, adoption, foster care,
or to care for a parent with a serious health
condition must be shared by spouses working for
same Employer |
Similar
to Federal provision Under separate statute,
State Employees may receive up to 12-months leave
for pregnancy, childbirth, or adoption, or care
for newborn No requirement that spouses share leave. Under
separate statute, employers are required to
provide a female employee affected by pregnancy,
childbirth, or related medical condition the same
benefits as provided employees on temporary
disability (for a period of 6 weeks or less). An
employee also is entitled to take pregnancy leave
for a reasonable period of time not to exceed 4
months. |
| Type
of Leave |
Unpaid
leave for birth, placement of child for adoption
or foster care, to provide care for Employee's
own parent (including individuals who exercise
parental responsibility under state law), child
under 18 or a dependant adult child, or spouse
with serious health condition, or Employee's own
serious health condition |
Similar
to Federal provision |
| Serious
Health Condition |
Illness,
injury, impairment, or physical or mental
condition involving incapacity or treatment
connected with inpatient care in hospital,
hospice, or residential medical-care facility;
or, continuing treatment by a health care
provider involving a period of incapacity: (1)
requiring absence of more than 3 consecutive
calendar days from work, school, or other
activities; (2) due to a chronic or long-term
condition for which treatment may be ineffective;
(3) absences to receive multiple treatments
(including recovery periods) for a condition that
if left untreated likely would result in
incapacity of more than 3 days; or (4) due to any
incapacity related to pregnancy or for prenatal
care |
Similar
to Federal provision |
| Health
Care Provider |
Doctors
of medicine or osteopathy authorized to practice
medicine or surgery; podiatrists, dentists,
clinical psychologists, clinical social workers,
optometrists, chiropractors (limited to manual
manipulation of spine to correct subluxation
shown to exist by x-ray), nurse practitioners,
and nurse-midwives, if authorized to practice
under State law and consistent with the scope of
their authorization; Christian Science
practitioners listed with the First Church of
Christ, Scientist in Boston, MA; any provider so
recognized by the Employer or its group health
plan's benefits manager; and any health provider
listed above who practices and is authorized to
practice in a country other than the United
States |
Medical
physician, surgeon, or osteopathic physician
certified by California or licensed in another
jurisdiction |
| Intermittent
Leave |
Permitted
for serious health condition when medically
necessary. Not permitted for care of newborn or
new placement by adoption or foster care unless
Employer agrees |
Leave
may be taken in one or more periods not to exceed
12 weeks |
| Substitution
of Paid Leave |
Employees
may elect or Employers may require accrued paid
leave to be substituted in some cases. No limits
on substituting paid vacation or personal leave.
An Employee may not substitute paid sick,
medical, or family leave for any situation not
covered by any Employers' leave plan |
For
family care and medical leave, Employee may
elect, or Employer may require, substitution of
accrued vacation leave or other accrued time off
or other paid or unpaid time off negotiated with
the Employer For Employee's own serious health
condition (but not other purposes unless the
Employer and Employee agree), Employee may use
accrued sick leave |
| Reinstatement
Rights |
Must
be restored to same position or one equivalent to
it in all benefits and other terms and conditions
of employment |
Similar
to Federal provision |
| Key
Employee Exception |
Limited
exception for salaried Employees if among highest
paid 10%, within 75 miles of worksites,
restoration would lead to grievous economic harm
to Employer, and other conditions met |
Similar
to Federal provision |
| Maintenance
of Health Benefits During Leave |
Health
insurance must be continued under same conditions
as prior to leave |
Similar
to Federal provision |
| Leave
Requests |
To
be made by Employee at least 30 days prior to
date leave is to begin where need is known in
advance or, where not foreseeable, as soon as
practicable If due to a planned medical
treatment or for intermittent leave, the
Employee, subject to health care provider's
approval, shall make a reasonable effort to
schedule it in a way that does not unduly disrupt
Employer's operation |
If
need for leave is foreseeable, Employee shall
provide reasonable advance notice Similar to
Federal provision |
| Medical
Certification May Be Required by Employer for: |
Request
for leave because of serious health condition To
demonstrate Employee's fitness to return to work
from medical leave where Employer has a uniformly
applied practice or policy to require such
certification |
Request
for leave because of serious health condition Employee's
fitness to return to work from medical leave as
long as practice of requesting a certificate is
uniformly applied |
| Executive,
Administrative, and Professional Employees |
Such
individuals are entitled to FMLA benefits.
However, their use of FMLA leave does not change
their status under the Fair Labor Standards Act
(FLSA), i.e., an Employer does not lose its
exemption from the FLSA's minimum wage and
overtime requirements. |
No
specific provision |
Federal vs. Connecticut Family and Medical Leave
Laws
|
FEDERAL
ELEMENTS |
STATE
ELEMENTS |
||||||||||
| Employer
Covered |
Private
Employers of 50 or more Employees in at least 20
weeks of the current or preceding year Public
agencies, including state, local, and Federal
Employers Local education agencies covered under special
provisions |
Private
sector Employers of 75 or more Employees,
determined as of October 1 annually, excepting
private or parochial elementary or secondary
schools State agencies covered under separate
statute, with similar provisions Local government agencies, including local
education agencies, excepted |
||||||||||
| Employees
Eligible |
Worked
for Employer for at least 12 months - which need
not be consecutive; worked at least 1,250 hours
for Employer during 12 months preceding leave;
and employed at Employer worksite with 50 or more
Employees or within 75 miles of Employer
worksites with a total of 50 or more Employees |
1000
hours service with Employer during 12-month
period preceding first day of leave No
worksite proviso |
||||||||||
| Leave
Amount |
Up
to a total of 12 weeks during a 12-month period;
however, leave for birth, adoption, foster care,
or to care for a parent with a serious health
condition must be shared by spouses working for
same Employer |
Employees
of covered Employers may receive 16 weeks of
leave in a 24 month period State employees in
the state are entitled to a maximum of 24 weeks
of medical leave in any two (2) year period in
order to serve as an organ or bone marrow donor Similar to Federal provision regarding sharing
of leave by spouses |
||||||||||
| Type
of Leave |
Unpaid
leave for birth, placement of child for adoption
or foster care, to provide care for Employee's
own parent (including individuals who exercise
parental responsibility under state law), child,
or spouse with serious health condition, or
Employee's own serious health condition |
Similar
to Federal provision, additionally to provide
care to spouse's parent or to serve as an organ
or bone marrow donor |
||||||||||
| Serious
Health Condition |
Illness,
injury, impairment, or physical or mental
condition involving incapacity or treatment
connected with inpatient care in hospital,
hospice, or residential medical-care facility;
or, continuing treatment by a health care
provider involving a period of incapacity: (1)
requiring absence of more than 3 consecutive
calendar days from work, school, or other
activities; (2) due to a chronic or long-term
condition for which treatment may be ineffective;
(3) absences to receive multiple treatments
(including recovery periods) for a condition that
if left untreated likely would result in
incapacity of more than 3 days; or (4) due to any
incapacity related to pregnancy or for prenatal
care |
Similar
to Federal provision |
||||||||||
| Health
Care Provider |
Doctors
of medicine or osteopathy authorized to practice
medicine or surgery; podiatrists, dentists,
clinical psychologists, clinical social workers,
optometrists, chiropractors (limited to manual
manipulation of spine to correct subluxation
shown to exist by x-ray), nurse practitioners,
and nurse-midwives, if authorized to practice
under State law and consistent with the scope of
their authorization; Christian Science
practitioners listed with the First Church of
Christ, Scientist in Boston, MA; any provider so
recognized by the Employer or its group health
plan's benefits manager; and any health provider
listed above who practices and is authorized to
practice in a country other than the United
States |
Similar
to Federal provision |
||||||||||
|
|
|
For the text of the complete Family And Medical Leave
Act statute, with your computer connected to the
internet, click this link: THE
FAMILY AND MEDICAL LEAVE ACT OF 1993
ADDITIONAL SUPPLEMENTAL SUBSTANTIVE WRITTEN MATERIALS:
The additional materials are provided with this activity. You can refer to (or print out) these supplemental substantive written materials by clicking on the links below.
Using the Online version of this program, you can RIGHT CLICK on the links, then select "save target as" to save them to your computer. Using the CD version of this program, simply click on the link to access the materials. These additional materials are included on the program CD.
US Department of Labor FMLA Business Guide to the Law
Employer's Response to Employee's Request for Leave
Health Care Provider's Certificate