In August 1993, President Clinton signed the Family and Medical Leave Act (“FMLA”). Rules interpreting the FMLA were published by the Department of Labor since that date. Generally, employers with 50 or more employees during 20 or more calendar workweeks in the current or preceding calendar year are subject to the FMLA.

To be eligible for leave under the new law, employees must have been employed by the employer for twelve months or more, for at least 1,250 hours during such period, working at a worksite having 50 or more employees (or where 50 or more employees work within 75 miles of the worksite).

Reasons for Leave. The leave required by the law is up to twelve work weeks of unpaid leave during any twelve month period:

(1) for birth or care of a newborn or the adoption or foster care placement of a child;
(2) to care for a child, spouse or parent of the employee who has a serious health condition; and
(3) because of a serious health condition that makes the employee unable to perform the employee’s job functions.

Return to Work. The FMLA requires the employee be returned to the same or a similar job with no loss of benefits accrued prior to the leave. Entitlement to take leave under paragraph (1) above expires twelve months following birth or placement. Employers are not required to accrue benefits or seniority during leave. Leave is not to be taken intermittently or on a reduced work hours basis unless the employer and employee agree. Leave under paragraphs (2) and (3) may be intermittent or on a reduced work hours basis when medically necessary. Where the leave is to be intermittent or on a reduced work hours basis, the employer can require a temporary transfer to an alternative position with equivalent pay and benefits that better accommodates recurring periods of leave.

If an employer regularly provides fewer than twelve weeks paid leave, the additional weeks necessary to attain twelve weeks may be unpaid. An employee may elect, or an employer may require, the employee to substitute any accrued paid vacation, personal or family leave for leave under (1) and (2) above, and accrued paid vacation, sick leave or short term disability benefits for leave under (3) above.

Doctor Certification. The employer may require a certificate from a health care provider for leaves under paragraphs (2) and (3) The FMLA describes the certificate requirements and the Department of Labor has provided forms for this purpose. The law provides for second and third opinions at the employer’s option and expense. Recertification may be required on a reasonable basis.

Benefit Continuation. Employee health benefits must be maintained during leave on the same terms and conditions as would have been provided otherwise. An employer may only recover premiums it paid during the leave if the employee fails to return from leave after the leave expires or ceases employment within 30 days after return for reasons other than the serious health condition or other circumstances beyond the employee’s control.

Coordination of Plans. If leave is taken on account of a serious health condition which is covered by worker’s compensation or other disability plan, such leave can be credited against the employee’s twelve week FMLA leave entitlement as well. In other words, they can run simultaneously.

The employer may choose one of four ways of measuring the twelve month period in which employees can take twelve months of leave (e.g. calendar year, anniversary of last leave, etc.), provided that it applies that method consistently to all employees.

A violation of the FMLA can result in employer liability for: wages (or where wages are not lost, the actual monetary loss sustained by the employee [e.g. cost of providing care] up to twelve weeks of employee’s wages) and benefits; interest; liquidated damages; (unless the employer can prove the act or omission which violated the FMLA was in good faith and it had reasonable grounds for believing it was not a violation); attorney’s fees; witness fees’ and equitable relief – employment, reinstatement and promotion.
– Cynthia Dixon

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