Knowledgeable Legal Counsel

The Family and Medical Leave Act became law in 1993 and was the first piece of major legislation signed by incoming President Bill Clinton. Though the FMLA has been amended since its enactment, its major provisions remain unchanged.

The law allows qualifying employees to take up to 12 weeks of unpaid leave in a year with health benefits continuing, along with an obligation to restore the employee to the same or similar position upon their return. The 12 weeks of leave do not have to be consecutive and can be used in increments.

Most employers calculate the year as beginning backward from the date of the FMLA leave request. This is called a rolling calendar year and is used to prevent an employee from taking 12 weeks from November of one year to January of the next year, and then immediately qualifying for another 12 weeks beginning in February.

A qualifying employee is anyone who has worked 1,250 hours for a covered employer within the past 12 months. The 12 months do not have to be consecutive -which covers seasonal workers - but for the employer to be covered by the FMLA, that employer (unless it is a public agency or public or private school) must have at least 50 employees on the payroll within a 75-mile radius. In other words, a fast-food chain with several locations within that radius would qualify if the total number of employees amounted to 50 or more. (Note: The FMLA was later modified to provide for a different calculation of hours served for flight crew employees.)

The FMLA allows leave:

• To care for a spouse, son, daughter, or parent facing a serious health condition
• To care for yourself if your health condition prevents you from performing the essential functions of your job
• To welcome and care for a newborn child or an adopted child or a child placed under your foster care
• To care for a spouse, son, daughter, or parent who is a military member on active duty or is called to active duty and faces a "qualifying exigency"

The employer can require an employee whose own health or the health of a covered family member is the basis for the FMLA request to submit medical certification. The certification form can be one supplied by the Department of Labor or one developed by the employer, but the employer's form cannot require information not specified in the FMLA or its regulations. The employer is obligated to pay for the certification. The employer may also require second and third recertifications at their own expense.

Employees returning from FMLA leave must be restored to their original or an equivalent position "with equivalent pay, benefits, and other terms and conditions of employment." According to the FMLA, the protected leave must be considered "no-fault," meaning it cannot count against the employee's attendance, though the employer is allowed to require employees to use up any remaining paid leave as part of the 12 weeks of FMLA leave. For instance, if an employee has three weeks of unused vacation time, the first three weeks of FMLA leave will be paid but considered protected under the FMLA. The protected leave, including vacation time, would still max out at 12 weeks.

If the employer offers health insurance, the coverage must be continued for employees on FMLA leave "under the same terms and conditions as if the employee had not taken leave." In other words, employees on FMLA leave are still responsible for their portion of the monthly health insurance premium.