Family Medical Leave Act Updates for Employers and Employees

by / 0 Comments / 120 View / May 1, 2018

The Family and Medical Leave Act is a federal law enacted to provide eligible employees working for a covered employer with an unpaid benefit to attend to an uncustomary family or medical situation.

The FMLA applies only to a covered employer. What makes you a covered employer? FMLA defines a private-sector employer as one who employs 50 or more employees in 20 or more workweeks within the current or previous calendar year. Private-sector employers with fewer than 50 employees are not covered under the FMLA; however, they might be covered under state law that relates to family and medical leave.

A key component of the FMLA is that the employee’s job and medical benefits are protected during the period that the employee exercises the benefit.

Eligible employees are allowed to take up to 12 workweeks of unpaid leave within a 12-month period. To be eligible for FMLA, an employee must work for the covered employer for 12 months and have worked at least 1,250 hours within that 12-month time period.

The statutory justification for requesting FMLA leave is separated into four main categories. Those categories include:

Childbirth. Leave can be requested for the birth of a son or daughter, adoption, foster care, and time to bond with a newborn and new child from adoption or foster care.

Family care. A second category includes the care for a spouse, son, daughter, or parent who has a “serious health condition” or urgent family medical situation. In some instances, a health condition may arise from childbirth, but it could also be to care for a loved one suffering from a devastating illness.

Employee health. A third category involves a serious health condition that prevents the employee from performing their essential job functions.

Military. The last category involves a family member who is in the military and has an injury while on covered active duty, is called to covered active- duty status, or has been notified of an impending call or order to covered active duty.

If the eligible employee has an immediate family member who is a covered service member, they may take up to 26 workweeks of unpaid leave to care for the service member as long as they have a serious injury or illness.

The combined total of 26 workweeks of leave includes up to 12 workweeks for any other qualifying FMLA reason. Once the employee exhausts their 26-workweek entitlement, they may not take any additional FMLA leave for any reason until the single 12-month period ends.

Also, the combined total of 26 workweeks of leave must occur during the single 12-month period. So it is very important for the employee to coordinate the leave request with the human resources department.

FMLA law protects employees from interference and retaliation by their employer for attempting to exercise their FMLA rights. In fact, employers must maintain the employee’s health benefits during the leave period and reinstate the employee to their original position or an equivalent position if the original one is not available.

In some limited situations, the employer, under FMLA guidelines, can require certification of need for FMLA from the employee. For example, an employer may request certification for leave requests to validate an employee’s own serious health condition; fitness-for-duty certification at the end of the employee’s leave; a serious health condition of the employee’s parent, spouse, son, or daughter; and military family leave.

Every covered employer under the FMLA is required by law to provide a general notice to their employees. There are two very specific requirements for the covered employer in this area.

First, they must display or post a general notice to employees explaining the procedures for obtaining leave. Second, if the employer has employees who meet the FMLA eligibility requirement, they must provide written notice to the employees using the employer’s employee handbook or in alternative written materials about leave and benefits.

Covered employers who willfully elect to violate the posting requirement may be assessed a civil penalty for each separate occurrence of the violation. The Department of Labor has developed a general FMLA poster that is available to covered employers. Just go to the department’s website at and obtain the poster. It is free and will satisfy the posting requirement.

The FMLA from 1996 through 2013 used a different standard to determine eligibility of employees. The standard used was based upon same-sex spouses consistent with the 1996 Defense of Marriage Act, which specifically provided that a “spouse” for federal law purposes had to be an opposite-sex spouse.

Conversely, in June 2013, the U.S. Supreme court, in the case of United States vs. Windsor, struck down the section of that law pertaining to the opposite-sex spouse standard.

Why is this law significant for employees and covered employers? Simple: The law changed the standard that covered employers will use to determine eligibility of employees under the FMLA.

Under the Windsor holding, more specifically, if the state in which the employee resided recognized same-sex marriage, then the employee’s same-sex spouse would qualify as a “spouse” under the FMLA.

In the same manner, for common-law marriage, if it was recognized in the state in which the employee resided, then the employee’s common-law spouse was a “spouse” for FMLA purposes.

As a result of the Windsor case, in February 2015, the United States Department of Labor issued new regulations instructing covered employers under the FMLA on how to determine if a same-sex spouse or common-law spouse qualifies as a “spouse” for purposes of FMLA leave request proffered by an employee.

The DOL regulations became effective on March 27, 2015. Furthermore, the regulations use “place of celebration” for determining whether a same-sex or common-law spouse qualifies as a “spouse” for the FMLA. In fact, under the “place of celebration” standard, the term “spouse” is defined using the law of the state where the marriage was consummated, rather than the state law where the employee currently lives.

For example, if a same-sex couple was married in a state permitting same-sex marriage, the employee’s spouse will qualify as a “spouse” for the FMLA, regardless of where the couple now lives or works.

If a same-sex or common-law marriage was entered into outside of any state in the U.S., then the employer should determine whether the marriage was valid in the country or other place it was entered into and whether the marriage could have been entered into in at least one state in the U.S.

Under the FMLA regulations, a covered employer has the right to request reasonable documentation of the family relationship, which could include the state in which the marriage occurred.

The reasonable documentation contemplated by the DOL for these purposes is a written statement from the employee, court document, child’s birth certificate (in the case of a stepchild), etc. Note that the employee, not the employer, gets to choose the form of documentation to be provided.

One last point that is very important for the employee: Unfortunately, the FMLA does not provide clear-cut definitions for serious health conditions. The law provides flexibility by allowing each situation to be considered on its own merits.

For example, one person’s problem with bronchitis might end up with a missed day of work and some harsh coughing, while another person with the same ailment might result in an extended stay in the hospital. Nevertheless, there are specific ailments that would not qualify as “serious health conditions” and they include the following: earache, upset stomach, minor ulcer, colds, flu, headaches, routine dental or orthodontic problem, cosmetic treatment, and indigestion.

The key to understanding serious health conditions involves continuous treatment by a doctor. However, an ailment that could lead to something more significant can be considered a serious health condition.

FMLA is a great benefit for an eligible employee. However, the employee has to make certain they have an urgent health condition that requires time off. BW

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