April 23rd, 2023
April 23rd, 2023
The Family and Medical Leave Act (FMLA), provides important rights to employees who need to take time off from work in order to attend to personal or family needs, also known as family or medical leave. In addition to federal FMLA, many states have enacted their own family and medical leave laws, which cover more workers or provide better benefits than existing federal laws. Generally, these rights under FMLA are limited and the time off is unpaid. However, in the wake of the coronavirus pandemic, an emergency law known as the Families First Coronavirus Response Act (FFCRA) was passed by congress and has the effect of expanding the FMLA until the end of 2020.
These laws can be complicated and confusing even in the best of times, so it is important to gather as much information as possible on these benefits and when they are applicable to a particular situation before taking necessary family or medical leave from work. This guide will explain the FMLA, the most recent changes to the law, and how these laws interact with different employer policies.
For more information about recently passed legislation affecting employers and employees, please see our guides What Does the CARES Act Mean for Most Americans and What Does the Families First Coronavirus Response Act Mean for Employers and Entrepreneurs.
The FMLA, passed in 1993, requires covered employers to give workers up to 12 weeks of time off per calendar year to care for ill family members, recover from serious illness themselves, care for a new child, or handle issues related to a family member's deployment to active military duty. It also gives workers the right to take up to 26 weeks of leave to care for a family member who has been seriously injured during military duty.
An employee is entitled to receive the benefits and protections under FMLA if all three of the following conditions are met:
1. The employer must have 50 or more employees working within a 75-mile radius. Any payrolled employees, including part-time and workers on leave, count towards the total of 50 employees.
2. The employee has been working for the employer for at least 12 months.
3. The employee has worked at least 25 hours per week during the 12 months immediately preceding their leave request.
Even once the initial three provisions are met, only particular reasons for requesting leave are covered by the FMLA. The covered circumstances are:
The FMLA provides a number of important protections to employees who must take leave to attend to their own health or the health of one of their family members.
Under the FMLA, an employee may take up to 12 weeks of unpaid leave during any 12 month period for the reasons listed above. Once this leave ends, the employer must reinstate the employee to the original position they held when they went out on leave. If for some reason this is not feasible, the employee must be reinstated to a position equivalent in pay, benefits, and other relevant working conditions. The employer may not move the employee to a lesser position with fewer perks and less responsibility.
There are several caveats to this reinstatement provision. Firstly, the employee has no greater right to reinstatement than if they had not taken this leave. If the position is legitimately eliminated for a reason unrelated to the leave while the employee is gone, they are not entitled to be reinstated. However, if the employer eliminates the position because the employee is out on leave, this would be considered unlawful retaliation in violation of the FMLA. Secondly, employers may refuse to reinstate special highly paid workers, known as "key employees." If an employee is among the 10% most highly paid employees working for the employer within a 75-mile radius of the workplace and reinstating this employee would cause the business "substantial and grievous economic injury," the employer may refuse to reinstate the employee. Prior to this refusal, the employer must provide warning ahead of time to the employee that they are considered a key employee who may not be entitled to return.
If the employer provides its employees with a group health plan, an employee is entitled to continued health insurance coverage while they are on leave. However, if the employee elects to not return to the job after their leave ends, the employer can require them to pay back the health care premiums they paid on their behalf during the leave. The employer may not require this if the employee cannot return to work after taking leave because their serious health issue continued or recurred or the employee was forced to leave due to other circumstances beyond their control.
Once an employee qualifies for protected leave under the FMLA, there are certain considerations they must attend to when making use of this leave.
The FMLA requires that, if possible, the employee provide their employer with at least 30 days notice before taking leave if the need for leave is foreseeable. This mostly applies to leave taken due to the birth or adoption of a child or time taken to recover from or help a family member recover from a planned surgery or medical treatment. This notice requirement does not apply in emergency situations where the need for leave is not foreseeable. However, the employee should still make their best effort to give the employer as much notice as is possible and practical under the circumstances, as well as provide an explanation for why the 30 days notice was not practicable if their employer asks for it. An employee does not need to invoke the FMLA to give notice. As long as they provide enough information to the employer so that they know the leave is for a covered purpose, the employee has given sufficient notice to trigger the employer's obligations under the FMLA.
If an employee has already taken FMLA leave and requests more time off for the same reason, they must specifically refer to the FMLA or their qualifying reason for taking leave. This rule recognizes that employees who have already made use of the FMLA and know that their situation qualifies for FMLA leave under the law can be expected to know the rules and provide more extensive notice.
While some employees may need or want to take leave as one block of time, for example, four weeks to recover from surgery, other employees may need to take leave intermittently rather than all at once. For example, an employee who needs to undergo physical therapy to recover from a serious injury may need to take leave for a few hours each week to attend doctor's appointments and physical therapy sessions. An employee may also take FMLA leave intermittently to care for an injured service member, leave work early due to a medical condition, or take time to accompany a family member to their medical appointments. An employee may take intermittent time for any qualifying urgent needs. However, employers are not required to allow intermittent leave for the birth or adoption of a new child but may agree to do so if they wish.
Although FMLA leave is unpaid, employees are entitled to use any of their accrued paid leave during FMLA leave so that they can continue to receive pay in certain circumstances. An employee may use accrued paid leave only if the reasons for the leave are covered by the employer's leave policy or state law. For example, an employee may not use paid sick leave during FMLA leave to care for an ailing family member unless the employer's leave policy or state law allows employees to take sick leave to care for people other than themselves who are ill. Further, an employer may require their employee to use their accrued vacation days during FMLA leave and any accrued sick days if the reasons for the leave are covered by the employer's sick leave policy. For example, if the employee takes time off to care for a sick family member, their employer may require that they use their accrued sick leave if their leave policy allows employees to use sick leave to care for ill family members.
Employees must follow their employer's usual policies and procedures regarding taking paid leave even if they are taking the paid leave while on FMLA leave. For instance, if an employer requires one week's notice before employees take vacation time and an employee must take emergency FMLA leave, the employer may not allow the employee to use their paid vacation leave during that first week of the FMLA leave. Once the week's notice passes, the employee would then be able to begin using their vacation time to receive pay during their FMLA leave.
Under the FMLA, employees are required to make all reasonable efforts to schedule foreseeable leave in a way that won't unduly disrupt the employer's workplace operations. If taking intermittent leave, the employee must work with the employer to create a schedule that both meets the employee's needs while also avoiding undue disruption at work. An employer may ask that the employee reschedule certain things or work around the business' legitimate requirements if possible. However, the employee's healthcare provider must sign off on any changes. For example, if rescheduling treatment would lead to medical complications, the employer may not require that rescheduling for their own convenience.
In response to the coronavirus pandemic, congress has passed the Families First Coronavirus Response Act (FFCRA) which is a bill that provides paid sick leave and, importantly, extends family leave coverage under the FMLA until the end of 2020. The FFCRA expands the FMLA in two main ways. Firstly, protected leave is now required from almost all employers. Prior to the FFCRA, employees only had access to family and medical leave when working for an employer with 50 or more employees. Now, employees have access to protected family and medical leave even if an employer has fewer than 50 employees. However, this law does include a hardship exemption that applies to businesses with fewer than 50 employees whose business would be jeopardized by providing the leave outlined in FFCRA. Secondly, employees are eligible for FFCRA leave after being employed for just 30 days rather than the year-long employment requirement under the FMLA.
There are two major types of employers who are exempt from the FFCRA. The first type of employers are those mentioned above who employ fewer than 50 employees and whose business viability would be jeopardized by providing paid leave. The second type of employers who are exempt are those in the health care industry. Those who work as emergency responders or health care providers may not have access to FFCRA paid leave.
In addition to the expansion of businesses that are required to provide protected leave to employees, under this new law, both government and private employers with fewer than 500 employees must give paid FMLA leave to employees caring for a child whose school or daycare has closed. These payments are limited to $200 per day or $10,000 total per employee. Employers will receive reimbursement of these payments through newly established tax credits. Under FFCRA, the first ten days of emergency FMLA leave are unpaid, though an employee can choose to use any sick time, vacation days, or other paid leave they have accrued to cover any portion of this ten-day waiting period. Once the ten-day period has elapsed, the employer is required to pay full-time workers two-thirds of their regular wage for the number of orders they would ordinarily be scheduled.
When planning to take leave either in advance or due to an emergency situation, it is important to know the rights and responsibilities of both the employee and employer to make the FMLA leave process go as smoothly as possible. This guide has discussed the key provisions of the FMLA, an overview of how an employee can take leave, and an examination of the extension of the FMLA through the recent Families First Coronavirus Response Act. Here are some of the most important points to remember about the FMLA:
About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.