How does the Family and Medical Leave Act work described by Daniel A. Schwartz, partner and Christopher Engler, an associate, with Shipman & Goodwin LLP in Hartford, Connecticut, the Family and Medical Leave Act (FMLA) was an early health-related priority for President Bill Clinton and it has been the law for more than 20 years.  The FMLA is a Federal Law and several states have enacted laws guaranteeing greater family and medical leave benefits.

The FMLA provides eligible employees with unpaid leaves of absence for certain family and medical reasons in order to provide eligible employees with unpaid and job-protected leave for certain medical and family reasons and to ensure their return to the same position.  Following the end of an employee’s FMLA leave, that employee must be returned to the previous job or an equivalent job with similar terms and conditions of employment, including salary and benefits.  The FMLA also requires employers to continue an employee’s health insurance coverage during the employee’s FMLA leave as if the employee had not taken a leave. As an example, if the employer usually pays 90 percent of premium costs, it must continue doing so during the employee’s leave. The employee remains on the hook for the remaining 10 percent.

The FMLA grants up to 12 weeks of leave during a 12-month period for reasons such as the birth, adoption, or foster placement of a child; caring for a spouse, child, or parent with a serious health condition; the employee’s own serious health condition; or certain “qualifying exigencies” related to the fact that a spouse, child, or parent is on active duty in the military.  The FMLA also grants up to 26 workweeks during a 12-month period to care for a member of the military with a serious injury or illness if the servicemember is the employee’s child, spouse, parent, or next of kin.

To qualify for standard FMLA, an employee’s own serious health condition must render the employee either unable to work or unable to perform an essential function of the job. The serious health condition of an employee’s spouse, child, or parent may also be a trigger if that family member is unable to care for him- or herself or is in a condition that necessitates the employee to provide transportation or psychological comfort to the family member.

The FMLA does not require that the leave be taken all at once. Employees can take intermittent FMLA leave using only a few hours at a time, either on a regular basis or periodically. An employee taking intermittent leave still only receives the equivalent of 12 weeks of leave.

In order to use FMLA leave, an employee must comply with the employer’s standard requirements for requesting leave.

The FMLA provides that employees can enforce their rights by either filing a complaint with the U.S. Department of Labor’s Wage and Hour Division or by bringing a private lawsuit.

To be eligible, the employee must have worked for his or her current employer for at least 12 months, the employee must have logged at least 1,250 hours for his or her current employer in the previous year, the employee must work at a worksite that is within 75 miles of at least 50 employees of the employer, and the employee must work for a covered employer.

In the public sector, a “covered employer” is any public agency, regardless of how many employees it has. All federal, state, and local government agencies are considered public agencies under the FMLA. By regulation, the Department of Labor has clarified that the definition also includes both public and private schools. Therefore, the FMLA applies equally to an enormous federal agency with tens of thousands of employees and a small rural police department with only a handful of deputies.

In the private sector. A “covered employer” is any private employer that has employed at least 50 employees in at least 20 workweeks in the current or previous calendar years. In calculating whether an employer meets this threshold, the Department of Labor’s regulations count all employees who are on the employer’s payroll on the first working day of a given calendar week.

However, for purposes of determining who is “on the payroll,” part-time and full-time employees are counted equally. Employees who are temporarily out of work on paid or unpaid leave are also counted, so long as the employer expects that the employees will eventually return to active duty. This would include employees taking FMLA leave and even employees who have been suspended for disciplinary reasons.

At its core, the FMLA strives to enable employees to care for themselves and their families with minimal disruption to themselves or their workplaces. With clear and open communication between the requesting employee and his or her employer, both parties can help ensure that this goal is achieved.

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