A company that is a covered employer and consists of eligible employees, who have qualifying conditions, is covered by the Family Medical Leave Act (FMLA) of 1993.
FMLA provides unpaid, job-protected leave for employees facing a serious health condition of their own or of a loved one. It also covers leave for the birth or adoption of a child and extends additional protections to military families. In February 2015, a decision was made to amend the definition of spouse in the FMLA extended the act to all legally married same-sex couples, whether or not the state in which they live recognizes their marriage.
A covered employer is a private-sector employer with at least 50 employees for 20 or more weeks in the preceding or current calendar year, including a joint employer or successor in interest to a covered employer. The 50-employee threshold test includes part-time, seasonal and temporary employees under the conditions of joint employment if they have a continuing relationship with your company as defined by the U.S. Department of Labor. Public agencies and schools, regardless of how many employees they have, must comply with FMLA.
To secure these benefits, an employee must work for an employer with at least 50 employees in a 75-mile radius of their work location, have been on the job at least 12 months, and have worked a minimum of 1,250 hours with the 12 month period prior to the FMLA leave. Employers may request medical certification from a doctor or health care provider of the existence of a qualifying condition but not of ADA or HIPAA protected details of the condition or treatment. Eligibility, both for the employer and employee, is determined using the date your employee applied for leave.
Qualifying conditions for FMLA consist of:
- A serious health condition, resulting in incapacitation for three or more consecutive days, or being under the continuing care of a health care provider
- Caring for a child, spouse or parent with a serious health condition
- Caring for a new baby or adopted child, including completing legal requirements for adoption
- Caring for someone in the service or a veteran, or circumstances arising from the deployment of a service person.
Rights under the law
Employees may receive up to 12 weeks of unpaid leave during a 12 month period. When the employee returns from the FMLA leave, the employer must reinstate the employee to his or her original job, or to an “equivalent” job, which means it is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (such as seniority). The employer is required to maintain group healthcare coverage as if the employee continued to work, and employees must continue to make their contributions to their healthcare plan. There are additional rights for military family leave.
If your company grants an extended leave to male employees for a serious health condition, the same leave conditions must also apply to women for pregnancy and health-related conditions under the Pregnancy Discrimination Act. Also, under the FMLA, both new fathers and mothers are eligible for unpaid leave for a new or adopted child. However, if both parents work for the same employer, the employer has the option of limiting the combined parental leave to a total of 12 weeks in the calendar year.
If you conclude that your company needs to comply with the FMLA, next steps include:
- Assessing the way that your company will calculate the 12 month period of employee eligibility
- Determining and communicating procedures that your employees can request leave
- Providing required notices under the law