Thursday, May 3, 2012

Family and Medical Leave Act (FMLA)

             According to the National Archives(1) an eligible employee can to take advantage of the Family and Medical Leave Act to take care of a parent with a serious health condition. However is necessary to check the definition of parent and son or daughter. For the American law(2) parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter. Son or daughter under the American law(3), means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.
            Therefore even if a parent literally had nothing to do with a biological child the child now employee can leave using the FMLA since that parent became your parent-in-law before the employee was 18 years old. However an employee that has a parent-in-law after age 18 is not eligible to take advantage of the FMLA because the law don’t recognize as a parent. Under the FMLA leave it really matters if that parent is biological or not and an eligible employee must prove through documents the relationship with that parent. An employer covered by FMLA has to employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Then even if the employer drop to less than 50 employees they can be covered by the law if the still meet the coverage criteria for 20 workweeks of the preceding(4). Other business that does not meet the rule above is note eligible to FMLA and their employees cannot take advantage of that.
Is important to take a note that some “public agencies” and every school even the private ones are eligible for FMLA(5) without subject to the coverage threshold of 50 employees carried on the payroll each day for 20 or more weeks in a year. However they must meet every other requirement.
            The size requirement the law intents to be fair with the business ability to cover a employee leaving through the FMLA, were employers with 50 or more employees is probably easier to cover this absence than for business with less than 50 employees.
The FMLA prohibits interference with an employee's rights under the law, and with legal proceedings or inquiries relating to an employee's rights (6). Any violations of the Act or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act. Under the Law Herman is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the FMLA. He cannot discharge or in any other way discriminating against Tony for opposing him to takes a leave of absence under FMLA. Even discouraging an employee from using such leave is considering a kind of interference in the exercise of an employee’s leave. Therefore manipulate the situation by offer some other benefit in order to “trade of” with Tony is also a violation against the right to take FMLA leave that can create a liability for Herman.
            In summary the employer is definitely prohibited to imply that if the employee takes a leave of absence under the FMLA, he may not have a job when he returns. An if he does he can be charge liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.     
            However the only chance for employee does not restore his job when he came back is if employer laid off his position during the course of taking FMLA leave and employment is terminated. In this case the employer's responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off.
            Although employers are prohibited to interfere in employee’s FMLA leaves, if an employee fails to provide required documents within a reasonable time under the particular facts and circumstances, then the employer may deny of the FMLA leave protections until an employee produces a sufficient certification. 
The FMLA(7) applies to all public agencies, including state, local and federal employers, local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers. The employee must have worked for a covered employer at least 1,250 hours for a total of 12 months doesn’t need to be consecutive but counted within seven years unless the break is occasioned by the employee’s fulfillment of his or her National Guard or Reserve military obligation.  A covered employer has to be at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.
            With these conditions above an eligible employee can have up to a total of 12 workweeks of unpaid leave during any 12-month period for the birth and care of a newborn child of the employee, for placement with the employee of a son or daughter for adoption or foster care; to care for a spouse, son, daughter, or parent with a serious health condition;  to take medical leave when the employee is unable to work because of a serious health condition; or for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation; for a serious injury or illness of spouse, son, daughter, parent, or next of kin of a current member of the Armed Forces(8).
Actually once an employee meet the FMLA requirements an employer cannot make their own determination as the eligibility of an employee under the act. However an employee must provide reasonable information do determine whether the FMLA may apply to the leave request. In this case employer might require certain certifications like a second or third medical opinions and periodic recertification for a serious health conditions. Also an employer may have a uniformly-applied policy requiring employees returning from leave for their own serious health condition to submit a certification that they are able to resume work.  If reasonable safety concerns exist, an employer may, under certain circumstances, require such a certification for employees returning from intermittent FMLA leave.
            However under certain conditions there are no impediments for employer and employee to make some other arrangement. For example instead of take the FMLA leave an employer can offer for an employee to take sick days or vacation. Employees or employers may choose to “substitute” (run concurrently) accrued paid to cover some or all of the FMLA leave.  An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy (9). 

National Archives and Records Administration. E-CFR Data is current as of October 20, 2011. Title 29: Labor. PART       825—THE FAMILY AND MEDICAL LEAVE          ACT OF 1993. Retrieved from:          dx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=            29:

Wage and Hour Division. U.S. Department of Labor. Fact Sheet #28:  The Family and   Medical Leave Act of 1993. (Revised February 2010). Retrieved at 10/26/2011 from:

No comments:

Post a Comment