Employee Rights and Responsibilities Under the Family and Medical
Leave Act
Basic Leave Entitlement
FMLA requires covered employers to provide up to 12 weeks of
unpaid, job-protected leave to eligible employees for the following reasons:
- For
incapacity due to pregnancy, prenatal medical care or child birth;
- To
care for the employee’s child after birth, or placement for adoption or
foster care;
- To
care for the employee’s spouse, son or daughter, or parent, who has a
serious health condition; or
- For a
serious health condition that makes the employee unable to perform the
employee’s job.
Military Family Leave Entitlements
Eligible employees with a spouse, son, daughter, or parent
on active duty or call to active duty status in the National Guard or Reserves
in support of a contingency operation may use their 12-week leave entitlement
to address certain qualifying exigencies. Qualifying exigencies may include
attending certain military events, arranging for alternative childcare,
addressing certain financial and legal arrangements, attending certain
counseling sessions, and attending post-deployment reintegration briefings.
FMLA also includes a special leave entitlement that permits
eligible employees to take up to 26 weeks of leave to care for a covered
service member during a single 12-month period. A covered service member is a
current member of the Armed Forces, including a member of the National Guard or
Reserves, who has a serious injury or illness incurred in the line of duty on
active duty that may render the service member medically unfit to perform his
or her duties for which the service member is undergoing medical treatment,
recuperation, or therapy; or is in outpatient status; or is on the temporary
disability retired list.
Benefits and Protections
During FMLA leave, the employer must maintain the employee’s
health coverage under any “group health plan” on the same terms as if the
employee had continued to work. Upon return from FMLA leave, most employees
must be restored to their original or equivalent positions with equivalent pay,
benefits, and other employment terms. Use of FMLA leave cannot result in the
loss of any employment benefit that accrued prior to the start of an employee’s
leave.
Eligibility Requirements
Employees are eligible if they have worked for a covered
employer for at least one year, for 1,250 hours over the previous 12 months,
and if at least 50 employees are employed by the employer within 75 miles
Definition of Serious Health Condition
A serious health condition is an illness, injury,
impairment, or physical or mental condition that involves either an overnight
stay in a medical care facility, or continuing treatment by a health care
provider for a condition that either prevents the employee from performing the
functions of the employee’s job, or prevents the qualified family member from
participating in school or other daily activities.
Subject to certain conditions, the continuing treatment
requirement may be met by a period of incapacity of more than 3 consecutive
calendar days combined with at least two visits to a health care provider or
one visit and a regimen of continuing treatment, or incapacity due to
pregnancy, or incapacity due to a chronic condition. Other conditions may meet
the definition of continuing treatment.
Use of Leave
An employee does not need to use this leave entitlement in
one block. Leave can be taken intermittently or on a reduced leave schedule
when medically necessary. Employees must make reasonable efforts to schedule
leave for planned medical treatment so as not to unduly disrupt the employer’s
operations. Leave due to qualifying exigencies may also be taken on an
intermittent basis.
Substitution of Paid Leave for Unpaid Leave
Employees may choose or employers may require use of accrued
paid leave while taking FMLA leave. In order to use paid leave for FMLA leave,
employees must comply with the employer’s normal paid leave policies.
Employee Responsibilities
Employees must provide 30 days advance notice of the need to
take FMLA leave when the need is foreseeable. When 30 days notice is not
possible, the employee must provide notice as soon as practicable and generally
must comply with an employer’s normal call-in procedures.
Employees must provide sufficient information for the
employer to determine if the leave may qualify for FMLA protection and the
anticipated timing and duration of the leave. Sufficient information may
include that the employee is unable to perform job functions, the family member
is unable to perform daily activities, the need for hospitalization or
continuing treatment by a health care provider, or circumstances supporting the
need for military family leave. Employees also must inform the employer if the
requested leave is for a reason for which FMLA leave was previously taken or
certified. Employees also may be required to provide a certification and
periodic recertification supporting the need for leave.
Employer Responsibilities
Covered employers must inform employees requesting leave
whether they are eligible under FMLA. If they are, the notice must specify any
additional information required as well as the employees’ rights and
responsibilities. If they are not eligible, the employer must provide a reason
for the ineligibility. Covered employers must inform employees if leave will be
designated as FMLA-protected and the amount of leave counted against the
employee’s leave entitlement. If the employer determines that the leave is not
FMLA-protected, the employer must notify the employee.
Unlawful Acts by Employers
FMLA makes it unlawful for any employer to:
- Interfere
with, restrain, or deny the exercise of any right provided under FMLA;
- Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.
Enforcement
An employee may file a complaint with the U.S. Department of
Labor or may bring a private lawsuit against an employer. FMLA does not affect
any Federal or State law prohibiting discrimination, or supersede any State or
local law or collective bargaining agreement which provides greater family or
medical leave rights.
FMLA section 109 (29 U.S.C. § 2619) requires FMLA covered
employers to post the text of this notice. Regulations 29 C.F.R. § 825.300(a)
may require additional disclosures.