Family and Medical Leave Act of 1993

The Family and Medical Leave Act of 1993 generally applies to employers of 50 or more employees in 20 weeks of the last year. Employees must have worked over 12 months and 1250 hours in the last year (around 25 hours a week). However, employees are not eligible if they work at a work site where the total number of employees employed by the employer within 75 miles of that work site is less than 50.[10] A worksite includes a public agency, including schools and state, local, and federal employers. The 50 employee threshold does not apply to public agency employees and local educational agencies. There are special hours rules for certain airline employees.[11]

Employees must give notice of 30 days to employers if birth or adoption is "foreseeable",[12] and for serious health conditions if practicable. Treatments should be arranged "so as not to disrupt unduly the operations of the employer" according to medical advice.[13]

Along with the 30 day notice, there are also other requirements to be made when seeking the FMLA rights. If an employee wants to leave the first time using ones FMLA rights, the person must first claim the Family and Medical Leave Act.[14] In the case that an employee were to leave again under the FMLA act, the same process must proceed.[15]

With the release of employees, there is a certification as well. The absence of an employee due to the conditions he or she may have may require a certification as proof of the verification of absence.[15] In order to certify the leave of an employee, the employer may ask for other requirements. An example of these requirements are requiring multiple medical opinions. All of these prerequisites are at the employer's expense. There are also certain rules that may apply to those who work at local education agencies.[15]

In most of the United States, employers and employees cannot refuse the application of the FMLA to FMLA-qualifying absences.[16] However from Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014)[17] in those states under the jurisdiction of the Ninth Circuit "[A]n employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection."[18]

Employees can have up to 12 weeks of unpaid leave for childbirth, adoption, to care for a close relative in poor health, or because of an employee's own poor health.[19] In full, the purposes for leave are:

• to care for a new child, whether for the birth, the adoption, or placement of a child in foster care;
• to care for a seriously ill family member (spouse, son, daughter, or parent) (Note: Son/daughter has been clarified by the Department of Labor to mean a child under the age of 18 or a child over the age of 18 with a mental or physical disability as defined by the Americans With Disabilities Act, which excludes, among other conditions, pregnancy and post-partum recovery from childbirth);[20]
• to recover from a worker's own serious illness;
• to care for an injured service member in the family; or
• to address qualifying exigencies arising out of a family member's deployment.
• twenty-six work weeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember's spouse, son, daughter, parent, or next of kin (military caregiver leave).[21]

Child care leave should be taken in one lump, unless an employer agrees otherwise.[22] If a father and mother have the same employer, they must share their leave, in effect halving each person's rights, if the employer so chooses.[23]

Employers must provide benefits during the unpaid leave.[24] Under §2652(b) states are empowered to provide "greater family or medical leave rights".

Since 2008, the Department of Labor has allowed the spouse, child, or parent of an active-duty military member who is deployed overseas for 12 or more months to take up to 12 weeks of leave. Also, a military caregiver provision was added that would allow a caregiver to take up to 26 weeks of leave in order to actively care for a military member who requires medical attention for acute or ongoing conditions.[25]

Under §2612(d)(2)(A) an employer can make an employee substitute the right to 12 unpaid weeks of leave for "accrued paid vacation leave, personal leave or family leave" in an employer's personnel policy. Originally the Department of Labor had a penalty to make employers notify employees that this might happen. However, five judges in the US Supreme Court in Ragsdale v Wolverine World Wide, Inc held that the statute precluded the right of the Department of Labor to do so. Four dissenting judges would have held that nothing prevented the rule, and it was the Department of Labor's job to enforce the law.[26]

After unpaid leave, an employee generally has the right to return to their job, except for employees who are in the top 10% of highest paid and the employer can argue refusal "is necessary to prevent substantial and grievous economic injury to the operations of the employer."[27] In full, the rights during and after unpaid leave are to:

• the same group health insurance benefits, including employer contributions to premiums, that would exist if the employee were not on leave.
• restoration to the same position upon return to work. If the same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits, and responsibility.
• protection of employee benefits while on leave. An employee is entitled to reinstatement of all benefits to which the employee was entitled before going on leave.
• protection of the employee to not have their rights under the Act interfered with or denied by an employer.
• protection of the employee from retaliation by an employer for exercising rights under the Act.
• intermittent FMLA leave for their own serious health condition, or the serious health condition of a family member. This includes occasional leave for doctors’ appointments for a chronic condition, treatment (e.g., physical therapy, psychological counseling, chemotherapy), or temporary periods of incapacity (e.g., severe morning sickness, asthma attack).[28]

“Highly compensated employees” have limited rights to return to their jobs. They are defined as “a salaried eligible employee who is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed”.[29] Their employers are not required to restore them to their original position (or an equivalent position with equivalent pay and benefits, as is guaranteed to other employees) if the employer determines that denying the employee their position is “necessary to prevent substantial and grievous economic injury to the operations of the employer” [29] and the employer provides the worker with notice of this decision, though no time frame for providing this notice is established.

Employees or the Secretary of Labor can bring enforcement actions,[30] but there is no right to a jury for reinstatement claims. Employees can seek damages for lost wages and benefits, or the cost of child care, plus an equal amount of liquidated damages unless an employer can show it acted in good faith and reasonable cause to believe it was not breaking the law.[31] There is a two-year limit on bringing claims, or three years for willful violations.[32]

The federal FMLA does not apply to:

• workers in businesses with fewer than 50 employees (this threshold does not apply to public agency employers and local educational agencies as they are covered employers by name but there still must be at least 50 employees with a 75-mile radius for the employee to be eligible for FMLA leave[15]);
• part-time workers who have worked fewer than 1,250 hours within the 12 months preceding the leave and a paid vacation;
• workers who need time off to care for seriously ill elderly relatives (other than parents), unless the relative was acting in loco parentis at the time the worker turned 18;[33][34]
• workers who need time off to recover from short-term or common illness like a cold, or to care for a family member with a short-term illness;
• elected officials; and
• workers who need time off for routine medical care, such as check-ups.
• workers who need time off to care for pets;

The federal FMLA only applies to employers with 50 or more employees within 75 miles. Some states have enacted their own FMLAs that have a lower threshold for employer coverage:

• Maine: 15 or more employees (private employers)[38] and 25 or more (state or municipal employers).[39]
• Maryland: 15 or more employees (private employers): up to seven days for bone marrow donation, 30 days for organ donation.[40][41]
• Minnesota: 21 or more employees (parental leave only).[42]
• Oregon: 25 or more employees. An employee must have worked at least 180 days, and averaged 25 hours per week at the time medical leave is requested[43][44]
• Rhode Island: 50 or more employees (private employers)[45] and 30 or more employees (public employers).[46]
• Vermont: 10 or more employees (parental leave only)[47] and 15 or more employees (family and medical leave).[48]
• Washington: 50 or more employees (FMLA reasons besides insured parental leave);[49] all employers are required to provide insured parental leave.[50][51]
• District of Columbia: 20 or more employees.[52]

The federal FMLA only applies to immediate family—parent, spouse, and child. The 2008 amendments to the FMLA for military family members extend the FMLA's protection to next of kin and to adult children. The Department of Labor on June 22, 2010 clarified the definition of "son and daughter" under the FMLA "to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship" and specifying that "an employee who intends to share in the parenting of a child with their same sex partner will be able to exercise the right to FMLA leave to bond with that child."[53]

In February 2015, the Department of Labor issued its final rule amending the definition of spouse under the FMLA in response to the decision in United States v. Windsor, effective March 27, 2015.[54] The revised definition of "spouse" extends FMLA leave rights and job protections to eligible employees in a same-sex marriage or a common-law marriage entered into in a state where those statuses are legally recognized, regardless of the state in which the employee works or resides.[55] Even if an employee works where same-sex or common law marriage is not recognized, that employee's spouse triggers FMLA coverage if the employee married in a state that recognized same-sex marriage or common law marriage.[56] Some states had already expanded the definition of family in their own FMLAs:

• California: Domestic partner and domestic partner's child.[57]
• Connecticut: Civil union partner,[58] parent-in-law.[59]
• Hawaii: Grandparent, parent-in-law, grandparent-in-law[60] or an employee's reciprocal beneficiary.[61]
• Maine: Domestic partner and domestic partner's child,[62] siblings.[63]
• Maryland: Allows the employee to use time for immediate family under the same rules if taking it for themselves. Includes step, adopted and even people who were primary caregivers even if not related.[64]
• New Jersey: Civil union partner and child of civil union partner,[65] parent-in-law, step parent.[66]
• Oregon: Domestic partner,[67] grandparent, grandchild or parent-in-law.[68]
• Rhode Island: Domestic partners of state employees, parent-in-law.[69]
• Vermont: Civil union partner,[70] parent-in-law.[71]
• Wisconsin: Parent-in-law.[72]
• District of Columbia: Related to the worker by blood, legal custody, or marriage; person with whom the employee lives and has a committed relationship; child who lives with employee and for whom employee permanently assumes and discharges parental responsibility.[73]

FMLA leave can be used for a worker's serious health condition, the serious health condition of a family member, or upon the arrival of a new child. State FMLA laws and the new military family provisions of the FMLA have broadened these categories:

• Connecticut: Organ or bone marrow donor.[74]
• Maine: Organ donor;[75] death of employee's family member if that family member is a servicemember killed while on active duty.[76]
• Maryland: Maryland Family Leave Act (MFLA) – Organ donor, Person Standing in Loco Parentis, For Service Leave, and added a specific anti-retaliation penalty on top of FMLA recovery. Runs parallel to FMLA.
• Oregon: Care for the non-serious injury or illness of a child requiring home care.[77]

Several states have passed FMLA-type statutes to give parents unpaid leave for other related purposes, including:

• Attending child's school or educational activities. Examples include California,[78] District of Columbia,[79] Massachusetts,[80] Minnesota,[81] Rhode Island,[82] Vermont,[83] and others.
• Taking family members to routine medical visits. Massachusetts[84] and Vermont.[85]
• Addressing the effects of domestic violence, stalking, or sexual assault. Examples include Colorado,[86] Florida,[87] Hawaii,[88] and Illinois.[89]

Vicki Yandle, a receptionist who was fired after asking for a few weeks of time off to care for a daughter with cancer, was on stage with President Clinton when the law was signed.[106]