Everything You Always Wanted to Know About the Family and Medical Leave Act (FMLA) but Were Afraid (or Didn’t Know) to Ask…
By Wayne J. Keeley, JD. LLM
Have you ever noticed that the legal world is filled with acronyms? There is the FOIA (Freedom of Information Act), APA (Administrative Procedure Act), ADA (Americans with Disabilities Act), NAD (National Advertising Division), CARU (Children’s Advertising Review Unit), SEC (Securities and Exchange Commission), FTC (Federal Trade Commission), EEOC (Equal Employment Opportunity Commission), and on and on ad infinitum and ad nauseam. Lawyers (and I am one of them) created this abundance of shorthand codes as a way to save themselves (and their paralegals) from the drudgery of writing out the multitudes of legalese, which they then may save for briefs, legislation, and fine print. Obviously, these acronyms and the terms for which they stand can be quite confusing to the lay public – which is why you need an attorney translator or at the very least, Google. But these acronyms and their meanings may be somewhat vague, ambiguous, and even completely foreign to attorneys and legal professionals as well. Let’s face it, unless you are a legal representative versed in disability law, you probably would not know a TANF (Temporary Assistance for Needy Families) from a COLA (Cost of Living Adjustment). Indeed, I once almost screwed up my entire legal career because of confusion about a few legal acronyms. After law school graduation, I sent my resume to firms which listed “M&A” as part of their practice because I was interested in marketing and advertising. It only took five minutes into my first interview with a Managing Partner to learn that M&A stood for “mergers and acquisitions,” not marketing and advertising. To this day, it remains the shortest luncheon interview I ever had.
Unless you practice labor, employment, and/or disability law, the Family and Medical Leave Act (FMLA) is another one of those hazy, fuzzy acronyms with which most attorneys only have a passing familiarity and for which most of the lay public and workforce, unfortunately, do not have a clue for what it stands, what it is, or what their rights are under it. Until recently, I only knew that FMLA meant “Family and Medical Leave Act” and I was vaguely aware that if you had a sick relative who required care or if you were a new father (or mother) and needed time off of work to bond with your newborn, you could take up to 12 weeks of leave – actually leave without pay (LWOP) – another acronym about which I have come to know very well. But I understood little else including whether or not it applied to me, if it was granted by my employer, or how it worked, etc. In my mind, who could afford to take a leave without pay anyway? Isn’t that for what accrued sick time or short term disability are there? Further, I knew nothing about my legal rights as an employee with a serious health condition. Like William Hurt’s character in the 1991 film The Doctor, it took a debilitating, life-threatening illness to knock me out of my bureaucratic ivory tower and into the ranks of lowly plebian patients who are at the mercy of the system that lawyers like myself created. That was the toughest medicine for me to swallow.
So I decided to write this article, not from the perspective of a businessman, bureaucrat, or attorney but rather as John Q. Public, with the fervent hope that the information contained herein helps both employers and employees to better understand the FMLA. (Since I am not writing this from a professional perspective, this serves as my disclosure that you cannot rely on this article as a substitute for competent legal advice and therefore cannot sue me for malpractice.)
The Family and Medical Leave Act was enacted in 1993[i] with the express purpose of ensuring job security for employees who needed to take time away from work to care for family and/or manage personal medical issues; it addresses these matters on a national level. The FMLA, though a federal law in nature, stands on the shoulders of overwhelming state legislation (still extant) enacted with the same purpose in mind. All employers do not have to comply with FMLA; those who do, will have at least 50 employees for at least 20 weeks in the current or previous year. (Of course, both covered and non-covered employers must comply with state laws.) An excellent research resource for learning about the background and legislative history of the FMLA may be found in the REPORT FROM THE COMMITTEE ON LABOR AND HUMAN RESOURCES.[ii]
In general, under the FMLA, covered employees may take up to 12 weeks of leave per year. There is an exception for military leave which maxes out after 26 weeks in a twelve-month period, but it does not renew every year. What most employees (and even employers) do not understand is that FMLA does not have to be continuous. Indeed, it may be intermittent and may include time periods as short as an hour. So, rather than wasting a full sick day, an employee actually may use leave under the FMLA for an hour-long medical appointment.[iii] Similarly, a covered employee may take intermittent leave if they require some kind of treatment periodically rather than continuously (e.g. weekly radiation treatment or physical therapy, monthly fertility treatment, etc.).[iv]
Of course, your employer may require certification from your medical health providers. An employer can readily obtain pre-printed forms from the U.S. Department of Labor should they desire this form to be filled out by your doctor, otherwise a letter from the provider on his/her letterhead may be sufficient.
Another relatively little known fact is that while FMLA is technically LWOP, an employee still may be able to receive income via accrued sick time, vacation, and/or personal days (as well as company holidays) should they elect to use it. Additionally, a covered employee also may be able to collect short term disability (STD – admittedly not a great acronym) while on FMLA. In fact, if it is a decision between STD or FMLA, an employee may want to follow poet Robert Frost’s advice and take the road less traveled: i.e., first choosing FMLA over STD and then applying for STD while on FMLA. As one human resources (HR) professional told me, “FMLA means job protection; STD does not.”
This latter point is the main impetus for why an employee should seriously consider FMLA. Your employer must reinstate you in the same or equivalent position when you return to work after leave under FMLA. Your job is secure.
Now where can you find information about whether your employer follows the requirements of the FMLA? The FMLA itself places the onus of disclosure squarely on the shoulders of the employer – and it is a heavy one indeed. First, details must be contained in the employee handbook and/or in other written guidance provided by the HR department and/or directly from the employer. Obviously, it must be detailed in writing, but it also may be done electronically. But passively receiving a once-a-year notice about the details of FMLA in an electronic handbook buried with a plethora of other information is not sufficient notice under FMLA.
Every employer also is required to post and keep posted such information in conspicuous places where employees may gather (i.e., over a water cooler, on a general access bulletin board, etc.). These posters delineate an employee’s rights under FMLA (see photo above) and may be obtained through the U.S. Department of Labor. The posting requirement, however, is a conjunctive one, meaning that the employer must give written notice to the employees and have postings in conspicuous places. But the FMLA doesn’t stop there. The FMLA imposes an actual notice requirement as well, as is noted directly from Section 825.300 of the act:
Eligibility notice. (1) When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.[v]
This situation is compounded by the fact that employees do not have to expressly or specifically mention the FMLA when they notify their employers that they need to take a leave.[vi] What this then means is that if, for example, an employee has a seriously ill child and asks for time off, the actual eligibility notice of the FMLA is thereby triggered, and the employee must be made aware of all the options that he or she may have open to them. This is wholly the responsibility of the employer to do so.
This situation then serves as a cautionary tale for employers who must be both vigilant as well as cognizant of their individual employees’ needs, especially large companies whose public images may hinge on confidence, transparency, and trust in the workplace. It is one of the principal reasons that employers should disseminate FMLA notices not only through general posting and written handbook requirements, but also interpersonally, via direct supervisory communications, informational meetings, and risk-management meetings. As far back as 1996, approximately forty percent (40%) of employers subject to the FMLA made the employees’ supervisors responsible for disseminating required information.[vii] If either improper notice or inadequate communication regarding FMLA (or other laws regarding disability issues) occur, an employee may have a cognizable negligent supervision claim in addition to other possible breaches and causes of action.
Indeed, the penalties for employers violating the FMLA are stiff. A breaching employer may held liable for damages including an employee’s loss of wages or benefits; interest; liquidated damages; actual monetary loss; equitable relief that a court may find just and proper; and attorneys’ fees.[viii] In some cases, courts have even allowed punitive damages. The investigative authority for employer FMLA violations (and other labor issues) is the Secretary of Labor.[ix] An employer may be held liable for non-willful and/or willful violations. Civil actions also may be brought against an employer by employee(s). In addition, the Secretary of Labor may bring its own action against an employer to recover damages.
Another riddle wrapped in an enigma which may sometimes present a problem is when does the 12-month period begin? In most cases, it is at the start of each calendar year (January 1). An employer, however, is permitted to choose any one of the following methods pursuant to Section 825.200(b):
(1) The calendar year;
(2) Any fixed 12-month leave year, such as a fiscal year, a year required by State Law, or a year starting on an employee’s anniversary date;
(3) The 12-month period measured forward from the date any employee’s first FMLA leave under paragraph (a) begins; or,
(4) A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave as described in paragraph (a).
Employers may choose any of the above provided they have given advanced notice to the employee. Even if the method selection is noted somewhere in an electronic employee handbook with countless other items including FMLA notice, the employer should also provide detailed notice to the employee of its method of calculations when officially advising the employee that he or she is entitled to FMLA protection. If an employer fails to give adequate notice then the option that is considered most favorable to the employee is used. As will be discussed more fully below, if a state has a FMLA, then the employee may be entitled to use the state requirement.
Finally, it should be noted that even though the FMLA is federal in nature, it does not preempt state or other legislation that may be more favorable in terms of leave requirements to employees. This is the biggest and murkiest legal quagmire and Venus flytrap for HR departments, especially those of a large corporation. While an employer may meet the bare minimum notice to its employees for FMLA, rarely do they advise employees of relevant state laws which also may be available to its employees. For example, under Connecticut’s Family Medical Leave Act, employees of covered employers may receive up to 16 weeks of leave (rather than 12) in a 24-month period.[x]
And not to be dismissed is the Americans with Disabilities Act, which I am sure will be the sequel to this article. For example, what if an employee needs more time than the allotted 12 weeks in a given year? Said employee may find a safe haven within the ADA or state laws. Additionally, it is generally customary for an employer to extend “reasonable accommodations” to any FMLA covered employee (e.g. one who may have a serious medical condition) via a further extended leave. While reasonable is not defined by statute and is determined on an ad hoc basis, an indeterminate length of time has been considered unreasonable and therefore routinely denied. Generally, short extended-leave periods of a few to several weeks are held reasonable depending upon the employee’s individual circumstances.
Being an attorney and ipso facto, being overly cautious with regard to duplicative disclosures, I’ll again state that this article is not meant to give legal advice; instead it is merely intended to create awareness and is for illustrative purposes; or perhaps it may be a launch pad to future research or even tweaks to the existing laws and procedures. It is certainly not meant to be a substitute for competent legal representation should you require it. What it surely is, however, is an educational diatribe about one employee’s journey into, what has been, the brave new world of FMLA (Furtherance of My Legal Acumen).
[i] Pub. L. No. 103-3, 107 Stat.6 (1993) codified at 2 U.S.C.A. Sections 1301, 1302, 1312, 1381-1385, 1401-1416; 5 U.S.C.A. Sections 6381-6387; 29 U.S.C.A. Sections 2601-2654.
[ii] S. Rep. No. 3, 103d Cong., 1st Sess. 1-51 (1993).
[iii] C.F.R. Sections 825.204 (c) (1).
[v] Section 825,300 FMLA
[vi] Manuel v. Westlake Polymers Corp., 66 F.3d 758 (5th Cir 1995).
[vii] REPORT OF THE COMMISSION ON FAMILY AND MEDICAL LEAVE, A WORKABLE BALANCE: REPORT TO THE CONGRESS ON FAMILY AND MEDICAL LEAVE POLICIES (April 30, 1996).
[viii] See, e.g., 29 USCA Section 2617(a)(1) and 29 U.S.C.A. Section 2617 (a) (3).
[ix] See Fair Labor Standards Act (FLSA) 29 U.S.C.A Section 211(a0 and 29 U,S,C,A. Section 2616(a).
[x] Conn. Gen. Stat. Sections 31-51 cc to 3151gg.