Family and Medical Leave Act of 1993
I. PURPOSE
The Family and Medical Leave Act (FMLA) aims to help employees “balance the demands of the workplace with the needs of families,” while also accommodating employers’ legitimate interests, by entitling employees to job-protected, unpaid leave to take care of certain personal and family matters. It is also meant to discourage gender-based discrimination and promote equal employment opportunity in the workplace.
II. HISTORY
The FMLA was enacted on February 5, 1993.3 It was the first federal law in the United States to guarantee job-protected family and medical leave for employees in the workforce. Four amendments have been made to the law since its passage, most notably two national defense authorization acts passed in 2008 and 2009, which created and expanded military caregiver leave and qualifying military exigency leave.
III. APPLICABILITY TO BYU–HAWAII
Any employer with at least fifty employees who are employed for twenty or more weeks in the calendar year is covered by the FMLA. Inasmuch as BYU–Hawaii employs more than fifty employees for more than twenty weeks in the calendar year, BYU–Hawaii must comply with the FMLA.
IV. REQUIREMENTS
In general, an employer must grant an employee up to twelve workweeks of unpaid leave within a twelve-month period for
- the birth of the employee’s child and the care of the newborn child;
- the placement of a child with the employee for adoption or foster care and the care of the recently adopted child;
- a serious health condition that makes the employee unable to perform his or her job functions;
- a serious health condition of the employee’s spouse, child, or parent who needs care by the employee; or
- a qualifying exigency due to the employee’s spouse, child, or parent being a service member on covered active duty status.
An employer must grant an employee up to twenty-six workweeks of FMLA leave within a twelve-month period to care for a covered service member with a serious injury or illness who is the employee’s spouse, son, daughter, parent, or next of kin.
An employee is eligible for FMLA benefits only if he or she has been employed by the employer for at least twelve months and has been employed for at least 1,250 hours of service during the twelve-month period right before taking the leave. The twelve months for which an employee must have been employed do not necessarily need to be consecutive months if certain conditions are met.
Employers are still obligated to comply with any other binding laws, programs, agreements, or plans
that provide greater family or medical leave rights than those mandated by the FMLA. If any leave qualifies for both FMLA leave and leave under state laws, the leave taken counts for both.
A. Reason for Leave
1. Birth of a Child
An employer must grant FMLA leave to an employee for the birth if his or her child, as well as to take care of or bond with the newborn. For healthy newborn child, this leave entitlement expires twelve months after the child’s birth.
2. Adoption of Foster Care Placement of a Child
An employer must grant FMLA leave when an employee adopts a child or when a foster child is placed with the employee. An employer must also grant FMLA leave for the employee to care for the newly placed child. Entitlement to this leave expires at the end of the twelve-month period beginning on the day of the placement. However, an employee 29 U.S.C. § 2612(a)(1)(D); 29 C.F.R. § 825.112(a)(4).may take FMLA leave before the actual placement of a child if work absence is required for the placement process to proceed.
3. Serious Health Condition of the Employee
i. General
An employer must grant FMLA leave for a serious health condition that leaves an employee unable to perform his or her job functions job. The type of “serious health condition” entitling an employee to FMLA leave is an illness, injury, impairment, or physical or mental condition that involves (1) inpatient care (an overnight stay) in a medical facility or (2) continuing treatment by a healthcare provider. Continuing treatment by a healthcare provider covers the following:
- Incapacity of more than three consecutive full days and subsequent in-person treatment within seven days of the first day if incapacity
- Pregnancy or prenatal care
- Chronic conditions, such as asthma
- Permanent or long-term conditions, such as Alzheimer’s stroke, or terminal disease
- Conditions requiring multiple treatments for the restorative surgery or a condition that would result in incapacity of more then three consecutive, full days without treatment, such as cancer, arthritis, or kidney disease
Incapacity leaves someone unable to work, attend school, or do other regular daily activities due to the serious health condition or treatment.24 Generally, a cold, the flu, ulcers, and routine dental problems are nor serious health conditions.
ii. Pregnancy
An employer must grant FMLA leave to a pregnant employee who need prenatal care, is incapacitated due to the pregnancy (e.g., severe morning sickness), or has a serious health condition after giving birth. A spouse may also qualify for FMLA leave if needed to care for a pregnant spouse.
iii. Treatment for Substance Abuse
Although substance abuse may be considered a serious health condition in some situations, FMLA leave is available only for the purpose of receiving treatment from a health care provider. An employer cannot take action against an employee for exercising this right to FMLA leave, but if the employer has a clear, well-communicated, previously established policy that outlines under what circumstances employment may be terminated for substance abuse, the employee may be terminated pursuant to that policy even if the employee is currently taking FMLA leave. However, an employer cannot take action against an employee who is using FMLA leave to care for a family member who is receiving treatment for substance abuse.
4. Serious Health Condition of a Family Member
An employer must grant FMLA leave for an employee to care for a family member with a serious health condition who needs physical or psychological care. Employees can also take FMLA leave to substitute for someone who normally cares for the family member or to make arrangements for changes in care. The employer must grant this leave even if there are other individuals or family members available to care for the individual with a serious health condition.
5. Qualifying Exigency or Serious Illness or Injury of a Covered Service Member
An employer must grant an employee FMLA leave for certain qualifying exigencies if the employee’s spouse, son, daughter, or parent is on covered active duty or on call to covered active duty status.
An employer must also grant FMLA leave for an employee to care for a covered service member with a serious illness or injury. The twelve-month period in which the twenty-six workweeks of leave may be take must begin on the first day the employee takes FMLA leave to care for the service member. An employee cannot take more than a combined total of twenty-six workweeks or FMLA leave for any combination of reasons and cannot take more then twelve workweeks of leave in a twelve-month period for a reason other than to care for a covered service member.
B. Intermittent and Reduced Schedule Leave
In general, employees may not take FMLA leave intermittently or on a reduced schedule unless the employer and employee both agree to it. However, there are specific exceptions for (1) serious health conditions making a schedule change medically necessary or (2) qualifying exigencies. When an employee takes intermittent or reduced schedule FMLA leave, the employer must account for the time using specified principles and calculations.
If an employee takes intermittent or reduced schedule leave, the employer may require the employee to temporarily transfer positions during the period of time that the intermittent or reduced schedule leave is taken. If required, this transfer must be to an available alternative position for which the employee is qualified, that accommodates the period of leave better than the employee’s regular position, and that has the same pay and benefits. The transfer may also include altering an existing job to better accommodate the employee’s needs for leave. An employer may not transfer an employee to an alternative position to punish the employee or deliberately discourage the employee from taking leave. An employer also may not require an employee to take more leave than is necessary.
C. Processing Requests for FMLA Leave
1. Advance Notice from the Employee
Generally, an employer has a right to at least thirty days’ notice that an employee intends to take FMLA qualifying leave. However, the employee does not need to assert legal rights or expressly reference the FMLA. If the employer has its own procedural requirements for requesting leave, such a notifying a specific person, it can require employees to follow those procedures absent unusual circumstances and so long as the employer doesn’t require notice more than thirty days in advance. If possible, any planned medical treatment should be scheduled so as not to unduly disrupt employer operations.
If the need for FMLA leave is foreseeable at least thirty days in advance, and the employee dost not give notice at least thirty days in advance, the employer may delay coverage until thirty days after the employee gave the notice. If the need for FMLA leave is not foreseeable thirty days in advance but the employee does not give notice of the need for leave as soon as is practicable, the employer may delay FMLA coverage for about the length of time that the employee could have, but did not, give notice.
2. Certification from the Employee
In general, an employer may require medical certification issued by a health care provider to support an employee’s request for FMLA leave due to a family member’s serious health condition or the employee’s own serious health condition. The employer may also require certification that verifies the validity of an employee’s FMLA claim to take leave to care for a covered service member or to take leave for a qualifying exigency. Likewise, the employer may require that the employee provide reasonable documentation that confirms a family relationship. If intermittent or reduced schedule leave is requested, the certificate must address the medical need for that kind of leave. When leave is taken for the employee’s own serious health condition, the employer may also ask for “fitness-for-duty” certification from an employee’s health care provider showing that the employee is able to return to work. The cost of the fitness-for-duty certification is borne by the employee.
At the employer’s expense, the employer may require the employee to obtain a second opinion from another health care provider if there is reason to doubt the validity of the medical certification that the employee initially provides. The employer may designate or approve the second health care provider that provides an opinion, but the health care provider must not be employed on a regular basis by the employer. If the opinions of the two health care providers differ, the employer may request a third opinion, again at the employer’s own expense, which is final and binding.
In most cases, the employer must request certification at the time the employee fives notice of leave or within five business days after that time, and the employee must provide the certification within fifteen days of that request. If the employee fails to provide the certification, the employer may deny FMLA coverage until the certification is provided or–in the case of a fitness-for-duty certification–delay reinstatement or terminate the employee.
D. Preservation of Benefits
During the entire period of FMLA leave, the employer must maintain the employee’s group health coverage and all associated benefits as if the employee had not taken leave. This means the employee must continue to pay any premiums as if he or she were working. An employer’s obligation to maintain group health benefits ends if the employee informs the employer of his or her intent not to return to work or the employee fails to return to work after using all his or her entitled leave.
If an employee’s premium payment is more than thirty days late while the employee is on FMLA leave and the employer has provided written notice to the employee of the missing payment, the employer may terminate the employee’s health coverage. However, coverage and benefits must be reinstated when the employee returns to work. If an employee does not return to work after taking FMLA leave, the employer can recover its share of the health plan premiums it paid during the period of leave.
In addition to health benefits, an employer may not take away any other employment benefits accrued by an employee prior to taking FMLA leave.
E. Restoration to Former Position
An employer must reinstate an employee to the same position held before taking FMLA leave or to an equivalent position with equivalent benefits and pay, even if the employee was temporarily replaced. Reinstatement is also required when an employee was temporarily transferred to an alternate position to accommodate intermittent or reduced schedule leave. However, reinstatement is not required if the employee cannot perform the job functions or if the employee obtained FMLA leave fraudulently.
F. Interaction with Other Types of Leave
1. Substitution of Paid Leave
An employer may require an employee to substitute accrued paid leave for FMLA leave, or an employee may choose to do so. In such cases, the paid leave runs concurrently with the unpaid FMLA leave and after the accrued paid leave has run out, the additional weeks of leave that the FMLA provides may be unpaid. If neither the employer nor the employee specifies that paid leave will substitute FMLA leave, the employee will still be entitled to all paid leave according to the terms of the employer’s plan.
2. Holidays
If a holiday occurs during a week that FMLA leave is taken, the whole workweek is still counted as FMLA leave, unless the leave increment is for less than one week. However, if the employer’s business activities were already going to be suspended for a week or more, those weeks will not count as FMLA leave. If the employee would have been scheduled to work during the holiday, the leave will count against the employee’s FMLA entitlement amount.
G. Special Employee Circumstances
1. Key Employees
A key employee is a salaried employee who is among the employer’s highest paid 10 percent of employees that work within seventy-five miles of the worksite at which the employee works. Key employees may take FMLA leave, but if the employer determines that restoring the employee to his or her former position (not the actual absences of the employee) would cause “substantial and grievous economic injury to the operations of the employer,” restoration to the former position may be denied. “substantial and grievous economic injury” means that reinstatement would threaten the economic viability of the firm, or that the injury would be both substantial and long-term.
If the employer believes that reinstatement might be denied to a key employee, the employer must give a written notice to the employee at the time that FMLA leave is requested explaining that he or she qualifies as a key employee and therefore may be denied restoration. If the employer intends to deny restoration of employment, the employer must notify the key employee, either in person or by certified mail, of that intention at the time the employer determines a qualifying injury would occur.
2. Spouses with the Same Employer
When spouses work for the same employer, the employer may limit the couple’s FMLA leave to a combined total of twelve (or twenty-six) workweeks as appropriate. An employer may apply this limitation even if the two spouses work in different operating divisions in the same company. In cases where both spouses use a portion of the twelve workweeks of combined FMLA leave, whatever amount of time each individual uses is subtracted from their normal twelve workweeks of individual FMLA leave for each of them, and the rest can be used for other purposes.
H. Notices
Employers must permanently and prominently post a general notice on their premises that explains FMLA provisions and how to file a complaint, even if no employees are eligible for FMLA leave, and electronic posting is sufficient. The employer must also provide this general notice to each employee either upon hiring or in an employee handbook or written document.
When leave is requested, the employer generally has five business days to notify the employee of his or her eligibility to take FMLA leave (orally or in writing) and to notify the employee if the employer designated the leave as FMLA qualifying or not (in writing) and to notify the employee if the employer designated the leave as FMLA qualifying or not (in writing). When giving an eligibility notice, the employer must also provide a written notice to the employee that explains the expectations and obligations of the employee and any consequences for not meeting those obligations.
I. Recordkeeping Requirements
Employer need to make and keep records “pertaining to their obligation under the [FMLA].” Specifically, records must disclose payroll and employee data, dates of FMLA leave, copies of notices premium payments of employee benefits, and more. The records do not need to be in any specific form, but they must be kept for at least there years and be made available upon request. Records relating to medical certifications or medical histories created for FMLA purposes must be kept confidential and separate from the usual personnel files.
V. PENALTIES
An employer who violates the FMLA must monetarily compensate an affected employee for lost income or benefits and any expenses incurred because of the violation plus interest. The employer must also pay the employee liquidated damages absent a showing of good faith. In addition, the employer must provide appropriate equitable relief, including employment, reinstatement, and promotion. Finally, the employer may be liable to pay reasonable attorney’s fees, expert witness fees, and other costs of action incurred by the employee.
If an employer willfully violates the requirement to post a notice of FMLA requirements, the Wag and Hour Division may assess a civil money penalty. As of 2018, the maximum penalty amount for willful failure to post notice was $169 for each offense.