February 01, 2016
The Family and Medical Leave Act of 1993 (“FMLA”) applies to all private employers who have fifty (50) or more employees on the payroll for twenty (20) or more workweeks in the current or preceding year. All federal, state and local agencies and public elementary and secondary schools are covered, regardless of the number of employees.
To be qualified to take FMLA leave, and employees must have been:
(1) Employed for at least twelve (12) months;
(2) Employed for at least 1,250 hours during the preceding 12-month period; and
(3) Who work at a work site where at least fifty (50) employees are employed by the employer within a seventy-five (75) mile radius.
Employees who are qualified to take FMLA leave may take up to a total of twelve (12) weeks of unpaid family and medical leave (during a 12-month period) for the following reasons:
(1) The birth of the employee's child and in order to care for the child;
(2) The placement of a child with the employee for adoption or foster care;
(3) To care for a spouse, child or parent who has a serious health condition; or
(4) A serious health condition that renders the employee incapable of performing the functions of his or her job.
The employer can choose the twelve (12) month period. This can be the calendar year, or any fixed twelve (12) month period, such as a fiscal year. Employers normally choose a “rolling” twelve (12) month period, measured backward from the date the employee used FMLA leave. The employer must use the chosen method with all employees, except in states that have family and medical leave laws with different requirements.
FMLA leave is generally unpaid, but the employer can permit or require employees to use any accrued and unused vacation or sick time concurrently with the FMLA leave, except in the case of leave taken under the employer’s temporary disability plan, or of an employee who is receiving worker’s compensation benefits.
Employees may take leave in a substantial block of time, or they may also take leave on an intermittent or reduced leave schedule. Such leaves must be taken because of a medical necessity, and the employee must attempt to schedule it so as not to disrupt the employer’s operations. The employer may assign the employee to a new position, with equivalent pay and benefits, that better accommodates the employee’s leave schedule.
Examples of circumstances where intermittent leave may be taken include time off for chemotherapy treatments, physical therapy to recover from an injury, or for recurring health issues such as migraine headaches. Employees may not take intermittent or reduced schedule leave for the birth or adoption of a child unless the employer agrees.
An employer needs to notify FMLA-eligible employees that the time that they are taking off counts as FMLA leave. The regulations require that this be done within 5 business days from when the employer "acquires knowledge that an employee's leave may be for an FMLA qualifying reason." The employee does not have to specifically request FMLA leave.
The Act’s protection is triggered if the employee provides enough information for the employer to realize that the FMLA’s protections are implicated. A multi-day absence in which the employee refers to a health condition or seeing a doctor is probably enough information to trigger the employer's duty to preliminarily designate the absence as FMLA leave, which can be done verbally, but should be done in
writing. The employer should follow up the preliminary designation in writing "no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday).” The employer can violate the FMLA by denying an FMLA benefit to which the employee is entitled, or by retaliating against the employee based on his or her exercise of an FMLA right. An aggrieved employee can file a complaint with the U.S.
Department of Labor. Alternatively, the employee can file suit in federal or state court. The employee can recover any back pay lost, as well as attorney’s fees. The back pay award can be doubled in the case of a willful violation.
FMLA Military Exigency Leave
Employees may take FMLA leave for “a qualifying exigency while the employee’s spouse, son, daughter, or parent (the military member or member) is on covered active duty or called to covered active duty status.” Employees may use up to twelve (12) weeks of FMLA leave for any of the qualifying reasons related to such exigent circumstances related to the military service. A covered service member is any member of the regular armed forces which includes the National Guard and Reserve Units called to active duty, which includes assignment to a foreign country. For reserve members, it may simply be in support of a “contingency operation.” Qualifying exigency circumstances include:
1. Short notice deployment;
2. Military events and related activities;
3. Childcare and school activities;
4. Financial and legal arrangements;
5. Counseling;
6. Rest and recuperation for time spent with a military member who is on short term temporary rest and recuperation leave during a period of deployment;
7. Post deployment activities;
8. Parental care, this is to provide care to the parent of a military service member when the parent is incapable of self-care. So, if the employee receives the leave to provide the care for the parent in the place of the military service member; and
9. Additional activities.
To obtain such leave, employee may provide a copy of the orders setting forth the call to active duty. Such leave may be taken on an intermittent basis in order to attend to the various activities covered by the regulations.
FMLA Military Caregiver Leave
The FMLA also provides for up to twenty-six (26) weeks of job protective leave for employees to provide care for a covered service member who suffered a serious injury or illness as a result of the military service. The leave is available so long as the employee is the spouse, son, daughter, parent or next of kin of the covered service member. Next of kin includes “the nearest blood relative, other than the covered service member’s spouse, parent, son or daughter, in the following order of priority: blood relatives who have been granted legal custody of the service member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered service member has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA.” A covered service member is any member of the armed forces including a member of the National Guard or Reserves who is undergoing medical treatment recuperation or therapy related to an injury or illness sustained in the course of military service. This also includes any covered veteran whose condition requires caregiver leave, as long as the condition manifested itself within five (5) years of the end of the veteran’s active duty service.
With FMLA Military Caregiver Leave, an employee is able to take up to twentysix (26) workweeks of leave to provide care for a service member during a single twelve (12) month period. In the case of Military Service Member Leave, the twelve (12) month period is calculated independent of other FMLA leave requests and begins on the first day the eligible employee takes FMLA leave to care for the covered service member and ends twelve (12) months after that date regardless of the method used by the employer to determine the employee’s twelve (12) workweeks of leave entitlement for other FMLA qualifying reasons. FMLA leave taken for other FMLA qualifying reasons during that same twelve (12) month period does count against the twenty-six (26) weeks of leave.