What Is the FMLA and Does It Apply To Your Business?

What Is the FMLA and Does It Apply To Your Business?

By Peter J. Preston

The FMLA requires employers of 50 or more employees to give up to 12 weeks of unpaid, job-protected leave.

President Clinton signed the Family and Medical Leave Act (“FMLA”) into law in 1993. The FMLA requires employers of 50 or more employees to give up to 12 weeks of unpaid, job-protected leave to eligible employees for the birth or adoption of a child or for the serious illness of the employee or a spouse, child or parent. This article takes a quick look at whether your business is covered; if it is, which employees are entitled to leave; and for those employees, what you have to provide.

Does the FMLA apply to your business?

In most cases, the FMLA applies to your business if you have at least 50 employees each working day, for at least 20 calendar weeks this year or last year.

Which of your employees are protected by the FMLA?

If your business meets the 50-employee test, your employees are covered if you have employed them for at least 12 months, and they have worked at least 1,250 hours during the previous 12 months.

An employee who is among the highest paid 10 percent of your staff may be ineligible under the FMLA.

Some employees who meet this test are still not protected by the FMLA, if they are “key” employees. An employee who is among the highest paid 10 percent of your staff may be ineligible under the FMLA if you can establish that denying FMLA leave to that employee was necessary to prevent substantial and grievous economic harm to your company. For example, if your Chief Financial Officer is the second-highest paid employee in your company, and you can show that returning her to that job after an extended absence will cause serious financial difficulties to your firm, you may be able to deny FMLA leave.

What are your obligations under the FMLA?

If your business is covered by the FMLA:

You are required to provide eligible employees with up to a total of 12 workweeks of unpaid leave during a 12-month period. As the employer, you are permitted to define the 12-month period from among a number of options, including by calendar year, any fixed 12-month period, or starting from an employeeÍs anniversary date.

During the leave, you must maintain the employeeÍs health coverage under any group plan in place as if the employee was continuing to work. The employee is still responsible for any premium contribution, but you must continue making the companyÍs premium payment.
Upon returning from leave, most employees are entitled to their previous position, or its equivalent, at the same pay rate, benefit level and other terms of employment. “Key employees” may be an exception to this rule, as are employees who would have been laid off during their leave regardless of using FLMA benefits.
You are also prohibited from interfering with your covered employees’ rights under the FMLA, or from discriminating against an employee for either opposing a practice that violates the FMLA or participating in any legal proceeding related to FMLA enforcement.
Typically, you are also required to advise the employee seeking time off that the company is designating that time as FMLA leave, and that it will count against the 12 weeks of leave the FMLA provides.

What Qualifies for the FLMA?

Once you know youÍre obligations under the FLMA, itÍs important to understand what the permissible reasons are for taking leave under the FMLA. Not all leaves are eligible. The following list is covered by the FMLA:

1. Birth and care of a newborn child.

2. Adoption of foster care placement of a son or daughter.

3. Care of an immediate family member (spouse, children, parents) with a serious health condition.

4. Medical leave when the employee is unable to work because of a serious health condition.

What is a “serious health condition”?

In general, a “serious health condition” under the FMLA is:

An illness or physical or mental condition requiring in-patient care (e.g., stroke; pneumonia; heart attack);
Incapacity from daily activities for three or more days under the continuous care of a health care provider (e.g., chemotherapy; physical therapy; dialysis); or
Continuing treatment by a health care provider for a chronic or long-term health condition (e.g., asthma, diabetes, epilepsy, etc.).

Many court battles under the FMLA revolve around whether a person does or does not have a “serious health condition.” The federal regulations implementing the FMLA provide a starting point by specifically excluding some things from that category, including:

common cold
flu
ear aches
upset stomach
minor ulcers
headaches that are not migraines
routine dental work
cosmetic treatments
absences caused by use of a controlled substance

It should be remembered, however, that complications with these conditions could develop, transforming a non-covered illness into one that is covered.

What are your employees’ obligations under the FMLA?

If the employee’s need for FMLA leave is foreseeable, he or she is required to provide the employer with 30-days advance notice. The employee must also make a reasonable effort to schedule medical treatment in a way that it does not unduly disrupt a company’s operations.
Advance notice of 30 days is not required when the employee does not know when the need for leave will begin, or in the event of a medical emergency. In such cases, the employee must provide notice as soon as practicable.

Employers may also require their employees requesting medical leave to provide a certification from a health care provider describing the serious health condition and stating the employee is either needed to care for the family member or is unable to perform the functions of his or her position.

State laws may also apply.
The state(s) in which you do business may also have laws similar to the FMLA. Generally speaking, you are required to comply with whichever laws provide the greater benefits to your employees.

Peter J. Preston is an attorney at the Chicago office of Sedgwick, Detert, Moran & Arnold LLP.

© 2003 Sedgwick, Detert, Moran & Arnold LLP. This communication is made available with the understanding that it does not constitute the rendering of legal advice or other professional service. Statement in Compliance with Texas Rules of Professional Conduct: Unless otherwise indicated in individual attorney biographies, lawyers resident in the firm’s offices are not certified by the Texas Board of Legal Specialization.