What is FMLA?
The Family Medical Leave Act (FMLA) allows eligible employees of covered employers to take unpaid, job-protected leave for certain family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.
Specifically, eligible employees are entitled to:
(1) 12 weeks of leave in a 12-month period for:
- The birth of a child and to care for the newborn child within one year of the child's birth;
- The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- To care for the employee's spouse, child, or parent who has a serious health condition;
- A serious health condition that makes the employee unable to perform the essential functions of his or her job; and
- Any qualifying exigency arising out of circumstances involving the employee's spouse, son, daughter, or parent as being a covered military member on “covered active duty;” or
(2) 26 weeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member's spouse, son, daughter, parent, or next of kin.
Covered Employers and Eligible Employees
As stated above, FMLA includes only “covered employers.” Under the law, a covered employer is defined as one who is:
- A private-sector employer, with 50 or more employees in 20 or more work weeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
- A public agency, including a local, state, or federal government agency, regardless of the number of employees; or
- A public or private elementary or secondary school, regardless of the number of employees.
Along with covered employers, it is helpful to understand the term “eligible employees.” One is only allowed to take FMLA leave if he or she is considered to be an eligible employee. This is an individual who:
- Works for a covered employer;
- Has worked for the employer for at least 12 months;
- Has a minimum of 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and
- Works at a location where the employer has a minimum of 50 employees within 75 miles.
Generally, an employee must abide by his covered employer's usual requirements for requesting leave in order to provide the employer enough information to determine whether FMLA will be applied to the request. Typically, an employee must give his employer 30 days notice when the need for leave is foreseeable. If 30 days notice is not possible, the employee must give notice as soon as he can under the circumstances.
When an employee is requesting leave for a FMLA-qualifying purpose for the first time, the employee does not have to expressly assert FMLA rights. If an employee requests additional leave for the same qualifying condition, the employee must specifically make reference to either the qualifying reason for leave or the need for FMLA leave.
In order for this process to work, covered employees are required, under law, to:
- Post a notice that explains both rights and responsibilities under the FMLA;
- Include information about the FMLA in the employee handbooks or provide information to newly hired employees;
- When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA-qualifying reason, provide the employee with notice concerning his eligibility for FMLA leave and his or her rights and responsibilities under the FMLA; and
- Notify employees whether leave is designated as FMLA leave and the amount of leave that will be deducted from the employee's FMLA entitlement.
If the leave involves an employee leaving due to his own serious health condition or a covered family member's serious health condition, the employer may request certification from a health care provider that will certify the leave. An employer also has the right to ask for additional medical opinions.
When an employee returns from his FMLA leave, he must be restored to his original job or an equivalent that has equal pay, benefits, and other terms of employment. An employer cannot consider FMLA leave to be counted against any form of “no-fault” attendance policy. Further, covered employers must continue the employee's group health insurance coverage while the employee is on FMLA leave.
Employees who work at local education agencies are provided with special rules. In most cases, these rules apply to intermittent or reduced FMLA leave or the taking of FMLA leave near the end of a set school term.
In addition, salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for an exemption from minimum wage and overtime under FLSA regulations will not lose their FLSA-exempt status by utilizing any unpaid FMLA leave. This special consideration to the “salary basis” requirements for FLSA's exemption broadens only to a qualified employee's use of FMLA leave.
It is against the law for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under the FMLA. In addition, it is illegal for an employer to terminate or discriminate any employee for opposing any practice, or because of involvement in any situation related to the FMLA.
In most cases, the Wage and Hour Division of the U.S. Department of Labor is responsible for administering and enforcing the FMLA for the majority of employees. Further, most federal and some congressional employees are also covered by the law, but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress. When an employee has a complaint related to possible FMLA violations, he or she should file the complaint with the Wage and Hour Division or file a private lawsuit against the employer in a court of law.
If you have legal matters related to FMLA or other family law matters, contact the professionals at 702 Defense. The attorneys at Las Vegas Defense Group will work with you in order to ensure that your rights are protected. Call us at 702-DEFENSE (702-333-3673) for a FREE consultation.