Family and Medical Leave Act

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The Family and Medical Leave Act (FMLA) is a federal law that applies to large employers (50 or more employees on payroll in this calendar year or last calendar year). If the law applies to the company, it gives eligible employees the right to take 12 weeks of leave per year for qualifying conditions without having the leave count against the employee. Basically, qualifying conditions are instances where an employee seeks or needs leave:

  • To bond with a newly born or newly added child (through birth, adoption, or foster care)
  • Because of their own serious health condition that prevents them from performing one or more essential function
  • When needed to care for a spouse, child, or parent who has a serious health condition
  • When a spouse, child or parent is in the U.S. Military and is serving or called to serve in a foreign country and such service results in a qualifying exigency
  • When a spouse, child, parent or when the employee is a next of kin to a current member of the military or recent veteran (< 5 years) who has suffered a serious injury or illness in the line of duty and is in need of care

The law, therefore, has a sole purpose – to provide time off to employees for these qualifying conditions without fear of loss of their job or status because of the absences.

But, time off (or leave) is the only right the FMLA produces. It does not produce or require in-job accommodations. In this sense, the FMLA is a law of extremes. Either the employee is on leave for an FMLA qualifying condition, or the employer has the right to demand work at 100% capacity. If the employee is performing any work, they are not on FMLA. Because of the “all or nothing” way the law works, the law permits employees to take the leave when needed, but no more than needed. So, an employee can take FMLA intermittently (even in small increments) for the same qualifying reason.

There is no undue hardship exception to the employee’s right to take the leave without fear of loss of their job, unless an employee is a key employee (salaried employee who is a top 10% wage earner within 75 miles). Most employers do not enforce the key employee exception.

An employer who counts FMLA absences against an employee has committed retaliation. If the retaliation results in job loss, or loss of pay or benefits, the employee is entitled to recover their damages, plus potentially liquidated damages (2x damages) and attorney’s fees. The law also provides for personal liability.

An employer can also be liable for interfering with the employee’s right to take leave under this law. Interference can take two forms. First, if an employer unlawfully attempts to block the employee’s ability to take the leave, then it has committed interference, which is a cognizable claim carrying with it the same damages structure as a retaliation claim. It can also lead to a department of labor audit, which can assess penalties and damages too. Common ways an employer has been found to have blocked an employee’s right to take leave are as follows:

  • Failing to notify an employee of their right to take FMLA at one of three stages where notice is required: (a) at the outset of employment through posters and policies; (b) when the employee requests leave for a qualifying condition; or (c) when the employer has enough information to designate a leave as FMLA qualifying.
  • Removing a job function the employee is restricted from doing and mandating the employee to return to work.
  • Changing the employee’s working hours to force an employee to make-up lost work time.

An employer can also be liable for interference when an eligible employee requests leave for a qualifying condition and advises the employer of the same, but the employer fails to recognize that the FMLA is triggered and therefore either denies the leave or counts the absences against the employee. 

Key Resources

For your convenience, ACC has compiled the following key resources to assist you in your compliance efforts.

For more try searching ACC's online library for "FMLA"

Survey Tools From Wolters Kluwer Law & Business

Instantly evaluate differences between jurisdictions with these complimentary Family, Medical and Parental Leave multistate survey tools.

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