The Family and Medical Leave
Act of 1993 (FMLA)
United States Department of Labor
Employment Standards Administration
Fact Sheet No. ESA 93-24
The Family and Medical Leave Act of 1993 (FMLA) was enacted on February 5,
1993.
The new law is effective on August 5, 1993, for most employers. If a
collective bargaining agreement (CBA) is in effect on that date, the Act
becomes effective on the expiration date of the CBA or February 5, 1994,
whichever is earlier.
The U.S. Department of Labor's Employ-ment Standards Administration, Wage and
Hour Division, administers and enforces FMLA for all private, state and local
government employees, and some federal employees.
FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-
protected leave each year for specified family and medical reasons. An
eligible employee's right to FMLA leave begins on August 5, 1993; any leave
taken before that date does not count as FMLA leave.
The law contains provisions on employer coverage; employee eligibility for the
law's benefits; entitlement to leave, maintenance of health benefits during
leave, and job restoration after leave; notice and certification of the need
for FMLA leave; and, protections for employees who request or take FMLA leave.
The law also requires employers to keep certain records.
FMLA 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 and who are engaged in
commerce or in any industry or activity affecting commerce þ including joint
employers and successors of covered employers.
To be eligible for FMLA benefits, an employee must:
- work for a covered employer;
- have worked for the employer for a total of at least 12 months;
- have worked at least 1,250 hours over the previous 12 months; and
- work at a location where at least 50 employees are employed by the employer
within 75 miles.
Most federal and certain congressional employees are also covered by the law
and are subject to the jurisdiction of the U.S. Office of Personnel Management
and the Congress.
A covered employer must grant an eligible employee up to a total of 12
workweeks of unpaid leave during any 12-month period for one or more of the
following reasons:
- for the birth or placement of a child for adoption or foster care;
- to care for an immediate family member (spouse, child, or parent) with a
serious health condition; or
- to take medical leave when the employee is unable to work because of a
serious health condition.
Spouses employed by the same employer are jointly entitled to a combined total
of 12 workweeks of family leave for the birth or placement of a child for
adoption or foster care, and to care for a parent (but not a parent-in-law) who
has a serious health condition.
Leave for birth or placement for adoption or foster care must conclude within
12 months of the birth or placement.
Under some circumstances, employees may take FMLA leave intermittently þ which
means taking leave in blocks of time, or by reducing their normal weekly or
daily work schedule.
- If FMLA leave is for birth or placement for adoption or foster care, use of
intermittent leave is subject to the employer's approval.
- FMLA leave may be taken intermittently whenever medically necessary to care
for a seriously ill family member, or because the employee is seriously ill and
unable to work.
Also, subject to certain conditions, employees or employers may choose to use
accrued paid leave (such as sick or vacation leave) to cover some or all of the
FMLA leave. The employer is responsible for designating if an employee's use
of paid leave counts as FMLA leave, based on information from the employee. In
no case can use of paid leave be credited as FMLA leave after the leave has
ended.
"Serious health condition" means an illness, injury, impairment, or physical or
mental condition that involves:
- any period of incapacity or treatment connected with inpatient care (i.e., an
overnight stay) in a hospital, hospice, or residential medical-care facility;
- any period of incapacity requiring absence of more than three calendar days
from work, school, or other regular daily activities that also involves
continuing treatment by (or under the supervision of) a health care provider;
or
- continuing treatment by (or under the supervision of) a health care provider
for a chronic or long-term health condition that is incurable or so serious
that, if not treated, would likely result in a period of incapacity of more
than three calendar days, and for prenatal care.
"Health care provider" means:
- doctors of medicine or osteopathy authorized to practice medicine or surgery
by the state in which the doctor practices; or
- podiatrists, dentists, clinical psychologists, optometrists and chiropractors
(limited to manual manipulation of the spine to correct a subluxation as
demonstrated by X-ray to exist) authorized to practice, and performing within
the scope of their practice, under state law; or,
- nurse practitioners and nurse-midwives authorized to practice, and performing
within the scope of their practice, as defined under state law; or
- Christian Science practitioners listed with the First Church of Christ,
Scientist in Boston, Massachusetts.
A covered employer is required to maintain group health insurance coverage for
an employee on FMLA leave whenever such insurance was provided before the leave
was taken and on the same terms as if the employee had continued to work. If
applicable, arrangements will need to be made for employees to pay their share
of health insurance premiums while on leave.
In some instances, the employer may re-cover premiums it paid to maintain
health coverage for an employee who fails to return to work from FMLA leave.
Upon return from FMLA leave, an em-ployee must be restored to his or her
original job, or to an equivalent job with equivalent pay, benefits, and other
employment terms and conditions.
In addition, an employee's use of FMLA leave cannot result in the loss of any
employment benefit that the employee earned or was entitled to before using
FMLA leave.
Under specified and limited circumstances where restoration to employment will
cause substantial and grievous economic injury to its operations, an employer
may refuse to reinstate certain highly-paid "key" employees after using FMLA
leave during which health coverage was maintained. In order to do so, the
employer must:
- notify the employee of his/her status as a "key" employee in response to the
employee's notice of intent to take FMLA leave;
- notify the employee as soon as the employer decides it will deny job
restoration and explain the reasons for this decision;
- offer the employee a reasonable opportunity to return to work from FMLA leave
after giving this notice; and
- make a final determination as to whether reinstatement will be denied at the
end of the leave period if the employee then requests restoration.
A "key" employee is a salaried "eligible" employee who is among the highest
paid ten percent of employees within 75 miles of the work site.
Employees seeking to use FMLA leave may be required to provide:
- 30-day advance notice of the need to take FMLA leave when the need is
foreseeable;
- medical certifications supporting the need for leave due to a serious health
condition affecting the employee or an immediate family member;
- second or third medical opinions and periodic recertifications (at the
employer's expense); and
- periodic reports during FMLA leave regarding the employee's status and intent
to return to work.
When leave is needed to care for an
immediate family member or the employee's own illness, and is for planned
medical treatment, the employee must try to schedule treatment so as not to
unduly disrupt the employer's operation.
Covered employers must post a notice ap-proved by the Secretary of Labor
explaining rights and responsibilities under FMLA. An employer that willfully
violates this posting requirement may be subject to a fine of up to $100 for
each separate offense.
Also, covered employers must inform employees of their rights and
responsibilities under FMLA, including giving specific information when an
employee gives notice of FMLA leave on what is required of the employee and
what might happen in certain circumstances, such as if the employee fails to
return to work after FMLA leave.
It is unlawful for any employer to interfere with, restrain, or deny the
exercise of any right provided by FMLA. It is also unlawful for an employer to
discharge or discriminate against any individual for opposing any practice, or
because of involvement in any proceeding, related to FMLA.
FMLA is enforced, including investigation of complaints, by the U.S. Labor
Department's Employment Standards Administration, Wage and Hour Division. If
violations cannot be satisfactorily resolved, the Department may bring action
in court to compel compliance. An eligible employee may also bring a private
civil action against an employer for violations.
Special rules apply to employees of local education agencies. Generally, these
rules provide for FMLA leave to be taken in blocks of time when intermittent
leave is needed or the leave is required near the end of a school term.
Salaried executive, administrative, and professional employees of covered
employers who meet the Fair Labor Standards Act (FLSA) criteria for exemption
from minimum wage and overtime under Regulations, 29 CFR Part 541, do not lose
their FLSA-exempt status by using any unpaid FMLA leave. This special
exception to the "salary basis" requirements for FLSA's exemption extends only
to "eligible" employees' use of leave required by FMLA.
The FMLA does not affect any other federal or state law which prohibits
discrimination, nor supersede any state or local law which provides greater
family or medical leave protection. Nor does it affect an employer's
obligation to provide greater leave rights under a collective bargaining
agreement or employment benefit plan. The FMLA also encourages employers to
provide more generous leave rights.
For more information, please contact
the nearest office of the Wage and Hour Division, listed in most telephone
directories under U.S. Government, Department of Labor, Employment Standards
Administration.
This is one of a series of fact sheets highlighting U.S. Department of Labor
Programs. It is intended as a general description only and does not carry the
force of legal opinion.
Send questions or comments to reida.solis@ccmail.nevada.edu
Last updated Tuesday, 08-Nov-2005 11:22:53 PST