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Employment Practice Considerations: The Family and Medical Leave Act

29 U.S.C. Section 2601 et. sea.

On February 5, 1993, President Clinton signed the Family and Medical Leave Act of 1993. The Act took effect on August 5, 1993 and will have an impact on all employers with 50 or more employees. Interim rules for interpreting the Act were issued on June 4, 1993.

Pertinent Provisions

Who is Covered:

  1. The Act applies to all public and private employers with 50 or more employees;
  2. To be eligible for the leave under the Act, an employee must have worked for the covered employer for at least 12 months (which need not be consecutive) and must have worked at least 1,250 hours over the previous 12 months; and
  3. The employee must be employed by an employer with 50 or more employees in a 75-mile radius.

Leave Requirements:

The employer must provide employees up to 12 weeks of leave per 12-month period for the birth of a child, the placement of a child for adopting or foster care, or the serious health care condition of the employee or for the care of an immediate family member (child, spouse or parent) who has a serious health condition.

Compensation During Leave:

  1. The Act does not require the employer to pay employees during the leave period;
  2. Employer must continue to provide the employee coverage under its group health plan during the leave period, and under the same terms offered to employees not on leave; and
  3. The employer may be entitled to recover any premiums paid if the employee on leave fails to return for reasons other than serious health condition or other circumstances beyond the employee’s control.

Job and Benefit Protection:

  1. The Act requires that employees be restored to their former positions or positions that are equivalent (not comparable) in pay, benefits and other terms and conditions of employment;
  2. Employees are not entitled to job benefits or seniority replica handbags accrual during the leave period; and
  3. Employees do not lose any benefits or seniority which accrued prior to the leave.

Prohibited Acts:

The Act provides that an employer may not interfere with an employee’s exercise of rights under the Act or discriminate against any employee for opposing unlawful practices under the Act or for participating in any proceedings related to the enforcement of the Act.

Limitations on Leave:

The Act provides a limited exemption from the requirement that the employee must be restored to his or her prior position for a salaried employee who is among the highest paid 10% of all employees in the employer’s work force within a 75 mile radius. The employer must notify the employee of employer’s intent to deny restoration at the time employer determines that substantial and grievous economic injury would occur to the employer.

Medical Certification for Serious Health Condition:

  1. The Act allows employers to require certification from the employee’s or family member’s health care provider for leave based on a serious condition;
  2. The Act provides that certification shall be sufficient if it states the date the serious health condition commenced and the probable duration of the condition, and the appropriate medical facts within the health care provider’s knowledge and an cartier replica watches employee is needed to care for the family member and an estimate of the time the employee’s care is needed;
  3. If the employer doubts the validity of the certification, it may require a second medical opinion at the employer’s expense, provided the health care provider is not employed by the employer on a regular basis; and
  4. In case of conflicting opinions, a third health care provider designated jointly or approved by the employer and employee may be obtained at the employer’s expense. The opinion of the third health care provider shall be considered final and binding.

Employee’s Duty to Give Prior Notice:

  1. The employee must provide 30 days notice if foreseeable, otherwise, must notify employer as soon as is practical (within one or two working days has been recognized as practical by the interim final rules); and
  2. For medical leave, the employee shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer.

Intermittent Leave or Reduced Leave Schedule:

  1. It is not permitted for a birth or adoption;
  2. It is permitted when medically necessary for both intermittent and part-time schedules; and
  3. If requested and foreseeable, the employer may require employee to transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and better accommodates recurring periods of leave.

Substitution of Paid Leave:

  1. An employee may elect or the employer may require the employee to substitute any accrued paid vacation leave, personal leave, or family leave to which the employee is entitled under the employer’s general leave policies for any part of the leave fake cartier watches required under the Act;
  2. An employee may also substitute any medical or sick leave to which the employee is entitled for leaves due to the employee’s or family member’s serious health condition; and
  3. An employer will not be required to provide paid medical or sick leave in any case where such leave would not normally be provided.

Employer’s Duty to Post Notice:

  1. All employers must post in a conspicuous place a notice prepared or approved by the secretary that summarizes the pertinent provisions of the Act and provides information on the filing of a charge;
  2. Employers who willfully violate the notice requirement may be fined a penalty of up to $100 for each separate offense; and
  3. The interim final rules also provide that employers must furnish additional information and notices to employees on entitlements and obligations for the Family and Medical Leave Act through employee handbooks or manuals, if the employer ordinarily distributes them, or by furnishing written guidance when employees request family and medical leave.

Effect of Other Laws:

  1. The Act does not supersede state laws that require more generous leave policies;
  2. Collective bargaining agreements may provide more generous policies than the Act; however, rights under the Act may not be contractually waived or restricted; and
  3. It is anticipated that the final rules which are expected in August will contain a provision explicitly allowing the Family and Medical Leave Act and worker’s compensation leave to run concurrently, if an injury qualifies under both laws.

Workers’ Compensation Settlements:

It is still unclear as to whether workers’ compensation settlements will protect employers against complaints filed under other federal employment laws unless those are specifically included in waivers. However, it is questionable whether, if included, the amount of protection provided by the waivers will be sufficient to bar other claims under federal employment law. There may also be preemption by the federal statutes if the state compensation laws do not provide greater rights to an injured worker than those provided by federal statutes. Unfortunately, there is no case law yet interpreting whether protective language found in workers’ compensation settlements (that specifically address the Family and Medical Leave Act and the Americans with Disabilities Act) will be upheld by the courts.