(Revised August 2000) Appendix E
After eight years of frequently bitter debate, Congress passed the Family and Medical Leave Act of 1993 (the Act) on Feb. 4, 1993, and President Clinton signed the measure into law the following day.
The Act became effective on Aug. 5, 1993, and required employers with 50 or more employees within a 75-mile radius to offer eligible workers up to 12 weeks of unpaid leave during a 12-month period for birth or adoption, to care for a seriously ill parent, spouse or child or to undergo medical treatment for their own serious illness. State and local governments are covered by the Act under the same conditions as private employers. It is estimated the Act will affect five percent of America's employers and 40 percent of all employees.
To be eligible to take family leave, a worker must have been employed for at least 12 months and have worked a minimum of 1,250 hours (this an average of 25 hours per week). While the year of service to the employer does not have to be performed consecutively, the 1,250 hours of work must have been performed during the 12 calendar months immediately prior to the beginning of the leave. The Act does not cover seasonal or part-time employees working fewer than 1,250 hours per year, however they must be included when calculating the number of employees stationed at a particular worksite.
Employers are not required to provide family leave to the highest paid top 10 percent of their executive employees if granting such a leave would "create substantial and grievous injury to the business operations."
The right to take leave applies equally to male and female workers: fathers and mothers will be eligible to take family leave for the birth of a child. While the Senate Report does not specifically mention a father taking leave when a child is adopted or a foster child is placed in a home, because the right to take leave applies equally to the sexes, it appears a father is also entitled to take leave when a child is placed. While both parents may be eligible to take leave, if both spouses work for the same employer, that employer may limit their combined total weeks of leave to 12 during any one-year period for the birth or adoption of a child. This provision is apparently designed to remove any disincentive to the hiring of married couples.
One of the most frequently asked questions is whether the 12 weeks of leave must be taken consecutively; this was also one of the most hotly debated issues in Congress. While a number of large businesses already have some sort of family leave policy in place, many smaller employers asserted that allowing frequent intermittent periods of leave was much more disruptive in the workplace than longer periods of leave. Apparently, the compromise Congress reached here is that intermittent leave cannot be taken for the birth or adoption of a child; however, medical leave can be taken on an intermittent basis or on a "reduced leave schedule" if it is "medically necessary."
Eligible employees may take up to 12 weeks of unpaid leave during a one-year period to care for a son, daughter, spouse or parent if that individual has a "serious health condition" which is defined as an "illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider." The Senate Report on the Act cites as examples of such serious health conditions emphysema, appendicitis, severe respiratory distress conditions, heart conditions requiring bypass or valve operations, back conditions requiring surgery or extensive therapy and severe nervous disorders. The Report also makes it clear this is not to be considered an exhaustive list of "serious health conditions."
An eligible employee may take up to 12 weeks of unpaid leave during any one year period for that employee's own "serious health condition." While a worker is allowed to take leave to care for a family member who simply has a "serious health condition," it is clear a higher standard must be met before an employee qualifies to take leave for a personal health condition: a worker must be able to demonstrate he or she is medically unable to perform the functions of their job before being eligible to take leave.
As previously mentioned, Congress has provided for intermittent leave in cases of "serious health conditions" if it is "medically necessary." This means a worker could take off for short periods of leave not to exceed 12 weeks in the aggregate during a one year period. The Senate Report defines "intermittent leave" as taking off for several hours, a single day or a week as a worker's medical needs require. A "reduced leave" schedule might include working only in the morning or adopting a regular three-day work week.
The Act also provides that the two types of leave - family and medical - may be combined. For example, if a woman takes six weeks of leave when her child is born, she would still be eligible to take leave that same year if her child experiences intermittent health problems. Under certain narrow circumstances, an employer can temporarily transfer an employee to another job with equivalent benefits and pay if granting intermittent leave would be inordinately disruptive to the workplace.
An employer can require medical certification regarding the need to take leave and of the worker's release to return to work after the leave. Such certification should include the date the serious health condition began and the estimated duration of the condition. If the employee is taking the leave to care for a family member, the certification should include a statement indicating it is necessary for that worker to care for the child, spouse or parent. If an employer doubts the validity of a worker's medical certification, it may require the eligible employee to get a second opinion from an independent health care provider of the employer's choosing. This is done at the employer's expense. If the two physicians do not agree on the prognosis, the employer and the eligible employee together must agree on a third physician whose opinion will be binding on the parties.
The Act also provides that:
1. When an employee returns to work after taking leave, an employer must guarantee the employee can return to the job they held before the leave or a comparable position. While there is certain to be debate regarding the interpretation of these terms, the Senate Report indicates the job reinstatement requirement is to be strictly construed: a "similar" or "comparable" position is probably not an "equivalent" position. To be an "equivalent" position, all privileges, duties, terms and conditions of the worker's previous job must arguably correspond.
2. Employers may force an employee to use vacation, sick or other accumulated leave before granting a leave under this Act.
3. Employers must continue providing health care coverage while an employee is on leave. Taking such a leave does not constitute a qualifying event which would trigger the continuation of health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). However, a qualifying event triggering COBRA coverage could occur when an employer learns an employee will not be returning to work and therefore ceases to be entitled to leave under the Act. The Act also permits employers to require employees to pay for any health care benefits the employer paid for during the leave if the worker does not return to work. However, if the failure to return from leave is caused by factors beyond the worker's control, repayment is not required.
4. An employer may require a worker on leave to periodically report their status and intent to return to work. The Report states this provision is to allow the employer to require such reports at "reasonable intervals."
5. Employees must give their employers 30 days' notice of their intent to take leave for foreseeable events such as childbirth, adoption or necessary medical treatment. However, if the birth or placement of a child or medical treatment requires leave to begin in less than 30 days, the employee must provide notice "as practicable."
6. The 12 weeks of leave provided under the Act is cumulative of whatever leave an employer already allows. For example, if an employer currently provides six weeks of paid leave, the new Act only requires the addition of six weeks of unpaid leave.
7. The penalties for violating the Act include an employee claim for lost wages and benefit costs plus interest and an additional 100 percent penalty for lost wages, benefits and interest. Reasonable attorneys fees and various costs (including payment of expert witnesses) are also allowed. The penalties are quite similar to those prescribed under the Fair Labor Standards Act.
8. The Office of Personnel Management of the Department of Labor (DOL) will enforce the Act. DOL has set a June 4, 1993, deadline for accepting public comment on the regulations which will be drafted to implement the Act. Hopefully, guidelines and regulations will be available before that Act goes into effect on August 5, 1993.
Those in favor of a national standard for family leave have argued for years that employers who have adopted family and medical leave policies have already experienced cost savings through reduced employee turnover and decreased hiring and training expenses. Such policies are viewed as a way to protect a company's investment of time and money in its most valuable commodity: its workers. Supporters have also argued the Act will be cost effective from a public policy standpoint and the benefits outweigh the problems because society as a whole often pays the price for failed, fragmented family units. On the other hand, many smaller employers see the new law as just the latest in a series of expensive, bureaucratic nightmares that will disrupt the workplace and result in lost productivity.
Which of these arguments proves valid on a national basis remains to be seen. The only thing that can be said with certainty at this time is that millions of American employers and employees are hopeful the Act can be implemented in a manner that maximizes benefits and minimizes burdens on both employers and employees.
Source: Texas Workforce Commission
Last Modified: February 12, 1998
http://hi-tec.twc.state.tx.us/medical/family.htm
Appendix E Back to top
FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to "eligible" employees for certain family and medical reasons. Employees are eligible if they have worked for a covered employer for at least one year, and for 1250 hours over the previous 12 months, and if there are at least 50 employees within 75 miles.
REASONS FOR TAKING LEAVE: Unpaid leave must be granted for any of the following reasons:
At the employee's or employer's option, certain kinds of paid leave may be substituted for unpaid leave.
ADVANCE NOTICE AND MEDICAL CERTIFICATION: The employee may be required to provide advance leave notice and medical verification. Taking of leave may be denied if requirements are not met.
JOB BENEFITS AND PROTECTION:
UNLAWFUL ACTS BY EMPLOYERS: FMLA makes it unlawful for any employer to:
ENFORCEMENT:
FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights.
FOR ADDITIONAL INFORMATION: Contact the nearest office of the Wage and Hour Division, listed in most telephone directories under U.S. Government, Department of Labor.
U.S. Department of Labor, Employment Standards Administration Wage and Hour Division, Washington, D.C. 20210
Source: Texas Workforce Commission
Last Modified: August 5, 1993
http://hi-tec.twc.state.tx.us/medical/fmlarite.htm
Appendix E Back to top
Revised Aug. 31, 2000. Content questions? Ask
the
experts.
Comments or suggestions? Contact the committee,
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