The Family and Medical Leave Act

On February 5, 1993, President Clinton signed the Family and Medical Leave Act of 1993. In explaining the intent of this legislation, the President stated, “American workers will no longer have to choose between the job they need and the family they love.” In general, the Act requires employers to provide to each employee up to twelve weeks of unpaid leave per year for the care of a newborn or newly-adopted child, a seriously ill family member, or the employee’s own serious illness. The following questions and answers are intended to illustrate the basic features of this new legislation.

• Is every employer covered by the Act?

  No. Only employers who employ fifty or more employees are covered. More specifically, to be subject to the Act, an employer must have employed at least fifty employees for each working day during each of twenty or more work weeks in the current or preceding calendar year.

• Which employees are eligible for leave under the Act?
  Employees are eligible for leave if they: (a) have been employed by the employer for at least twelve months, and (b) have worked at least 1,250 hours during the twelve-month period preceding the commencement of the leave.

• An employer has more than fifty employees, but they work at several different locations. Does the Act apply to all of these employees? 
  It depends. An employee is eligible for leave only if the employer employs fifty or more people within a seventy-five-mile radius of the employee’s worksite. In other words, whether a particular employee is eligible for leave depends on the number of employees who work at all of the employer’s facilities that are within a seventy-five-mile radius of that employee’s worksite. If there are fifty or more, the employee is eligible for leave under the Act.

• For what reasons is an employee entitled to leave? 
  An eligible employee is entitled to leave for any of the following three reasons: the birth or placement for adoption or foster care of a child, the serious health condition of a close family member, or the employee’s own serious health condition.

• Which are the family members whose serious illness entitles an employee to leave?
   The employee’s spouse, son, daughter, or parent. Congress intended for the terms “parent,” “son,” and “daughter” to be broadly construed to include, for example, an employee who has day-to-day responsibility for caring for a child, even if the employee does not have a biological or legal relationship to the child.

• To how much leave is an eligible employee entitled?
   An employee is entitled to a total of twelve weeks of unpaid leave during any twelve-month period.

• Must the twelve weeks of leave be taken consecutively? 
  Not necessarily. In the case of an employee’s (or his or her family member’s) serious illness, an employee may take his or her twelve weeks of leave in shorter, intermittent segments or by working a reduced schedule. In this situation, an employer may require the employee to transfer temporarily to another position with equivalent pay and benefits that can more easily accommodate the intermittent leaves or reduced work schedule. However, leave to care for a newborn or newly-adopted child may not be taken intermittently or through a reduced work schedule unless the employer agrees to such an arrangement.

• In the case of the birth of a child, must the employee take the leave immediately following the birth? 
  No. Leave for the birth or placement of a child may be taken within twelve months after the birth or placement.

• May an employer require documentation of the need for the leave?
  If the leave is requested because of the employee’s or family member’s serious health condition, the employee may be required to provide certification by a health care provider as to (a) the date the condition commenced, (b) its probable duration, (c) in the case of a family member, a statement that the employee is needed to care for the family member and the expected duration of such need, and (d) in the case of the employee’s own illness, a statement that the employee is unable to perform the functions of his or her position. In addition, in the case of a request for intermittent leave or a reduced work schedule, the employer may require verification as to the dates and duration of treatment and of the expected duration of the necessity for intermittent leave or a reduced schedule.

• Must the employer accept the certification provided by the employee? 
  Not necessarily. If the employer has “reason to doubt the validity” of the employee’s certification, the employer may require that the employee obtain a second opinion at the employer’s expense, from a health care provider not regularly employed by the employer. If this opinion differs from the employee’s certification, the employer may require, at its expense, a third opinion which is “final and binding.”

• Do existing policies for paid sick leave and personal leave affect employees’ rights under the Act? 
  The Act authorizes employers to require their employees to use paid vacation, personal, or sick leave for any part of the twelve-week leave period required by the Act. If paid leave is used by an employee, the employer is then obligated to provide only enough unpaid leave to total twelve weeks.

• Does the Act invalidate employer policies prohibiting excessive absenteeism or providing for a limited number of sick leave days? 
  The Act does not invalidate or affect the application of absenteeism or sick leave policy to employees who take time off from work due to an employee’s (or his or her family member’s) minor illness. The Act does not cover short-term conditions which last only a few days, or surgical procedures which typically do not involve hospitalization and require only a brief recovery period. The Act does, however, prohibit an employer from applying an absenteeism policy to limit the number of unpaid sick days of an employee who complies with the Act’s notice and certification requirements and who suffers from a “serious health condition” which requires time off from work for treatment or recovery, or who must attend to a “serious health condition” of a family member. The Act does not, under any circumstances, require paid sick leave or invalidate an employer’s policy providing for a limited number of paid sick leave days.

• Is the employee entitled to benefits during the leave? 
  The Act does not require that employees continue to accrue seniority or other employee benefits, such as vacation or sick leave, during their absence. An employer, however, is obligated to continue any health insurance benefits which it provided to the employee prior to the leave. If an employee fails to return to work following the leave, the employer may recover the health coverage premiums paid during the leave, except where the failure to return was occasioned by the employee’s illness (or other circumstances “beyond his or her control”).

• Is the employee required to provide advance notice of his or her need for the leave?
  In the case of leave for the birth or placement of a child, the employee must provide the employer thirty days’ notice before the commencement of the leave, or “such notice as is practicable.” The same notice requirement also applies where an employee knows in advance that he or she will require leave for medical treatment.

• Is an employer required to reinstate an employee to his or her former position following a leave? 
  Yes. Employers must guarantee an employee the right to return to either his or her previous position or an equivalent position at the end of the leave. If reinstatement to a different position is offered, it must be truly equivalent in terms of compensation, benefits, and other conditions of employment.

• Are there any exceptions to the reinstatement requirement? 
  The Act provides a limited exception to the reinstatement requirement for certain highly-compensated employees: those who are in the highest-paid ten percent of the employer’s workforce within a 75-mile radius of the worksite in question. The employer may decline to reinstate such an employee if it would cause “substantial and grievous economic injury” to the employer’s business. To rely upon this exception, the employer must notify the employee of the intent to deny reinstatement at the time the employer determines that such injury would occur. Even if the employer notifies such an employee that he or she will not be reinstated at the conclusion of the leave, the employee is entitled to the continuation of any health benefits for the duration of the leave.

• How is the Act enforced? 
  The Act is enforced by the Department of Labor which possesses the investigative authority to ensure compliance with the Act. Employers are required to maintain records relating to their compliance with the Act. The Act grants to both the Secretary of Labor and employees the authority to commence suit for violations of the Act. The remedies available include monetary damages and equitable relief such as reinstatement or promotion of the employee, as well as attorney’s fees.

• How does the Act affect an employer’s obligations under state laws or collective bargaining agreements? 
  It does not. The Act is not intended to supersede any state or local laws providing for more generous leave. Although New York has not enacted legislation in this area, California law requires that an employee be granted up to 16 weeks of leave during every 24-month period for the illness of a family member or the birth or adoption of a child. Moreover, an employer’s obligations under a collective bargaining agreement or employment benefit program which provides for greater rights are not diminished by reason of the Act.

• When does the Act take effect? 
  The Act becomes effective on August 5, 1993, except that employers whose employees are covered by a collective bargaining agreement in effect on August 5, 1993, must begin to comply with the Act either when that agreement expires or on February 5, 1994, whichever is earlier.