The Family and Medical Leave Act of 1993 (FMLA) is a United States labor law requiring covered employers to provide employees with job-protected, unpaid leave for qualified medical and family reasons. The FMLA was a major part of President Bill Clinton's first-term domestic agenda, and he signed it into law on February 5, 1993. The FMLA is administered by the Wage and Hour Division of the United States Department of Labor.
The FMLA allows eligible employees to take up to 12 work weeks of unpaid leave during any 12-month period to care for a new child, care for a seriously ill family member, or recover from a serious illness. The FMLA covers both public- and private-sector employees, but certain categories of employees, such as elected officials and highly compensated employees, are excluded or face certain limitations. To be eligible for FMLA leave, an employee must have worked for their employer for at least 12 months, have worked at least 1,250 hours over the past 12 months, and work for an employer with at least 50 employees within a 75-mile radius. Several states have enacted laws providing additional family and medical leave protections for workers.
Background
Before the 1992 presidential election, a family medical leave act had been vetoed twice by President George H. W. Bush. After Bill Clinton won the 1992 election, a law protecting family medical leave became one of his major first-term domestic priorities. Rapid growth in the workforce, including a large number of women joining, suggested a federal regulation that would support workers who wanted to raise a family and/or needed time off for illness-related situations. Clinton signed the bill into law on February 5, 1993 (codified under , , and ), with enforcement of the bill to start on August 5, 1993.
The United States Congress passed the act with the understanding that "it is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing ... [and] the lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting."Congress. 1993. Family and Medical Leave Act of 1993. Washington, D.C. pH.R.1–2 quoted It also stressed the act was intended to provide leave protection "in a manner that accommodates the legitimate interests of employers."Congress. 1993. Family and Medical Leave Act of 1993. Washington, D.C. pH.R.1–2 quoted.
On December 20, 2019, as part of the National Defense Authorization Act (NDAA) for Fiscal Year 2020,; NDAA 2020, Pub.L. 116-92, the Federal Employee Paid Leave Act (FEPLA) amended the FMLA to grant federal government employees up to 12 weeks of paid time off for the birth, adoption, or foster of a new child.Leave requirement: The law applies to births or placements occurring on or after October 1, 2020.
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Scope of rights The Family and Medical Leave Act of 1993 generally applies to employers of 50 or more employees in 20 weeks of the last year. An employee must have worked over 12 months and 1,250 hours in the last year (around 25 hours a week), and they must have worked at a work site where the total number of employees employed by the employer within 75 miles of that work site is at least 50.(2)
For employees with no fixed work site, their work site is considered to be the location where they are assigned as their "home base", where their work is assigned, or where they report.(a)(2). A work site is never considered the employee's home, even if they work from home; in these cases, their worksite is considered the location where they report and that assigns them work.(a)(2) Employees who are not employed in U.S. nor its territories are not counted.(b) For educational institutions, teachers who are employed permanently or under contract are counted even when school is not in session.(c) Work sites include public agencies, including schools and state, local, and federal employers. After a private employer meets the 50 employees in 20 workweeks threshold, the employer continues to be covered by FMLA until the employer no longer has employed 50 employees for 20 workweeks in both the current and the preceding calendar year.(f) The 50-employee threshold does not apply to public agency employees or local educational agencies. There are special hours rules for certain airline employees.
The 75-mile radius is measured using the shortest route using surface roads or waterways.(b).
Employees must give employers 30 days' notice if birth or adoption is "foreseeable",(e) and for serious health conditions if practicable. Treatments should be arranged "so as not to disrupt unduly the operations of the employer" according to medical advice.(e)(2)
Along with the 30 days' notice, there are other requirements when seeking the FMLA rights. If an employee wants to leave the first time using their FMLA rights, they must first claim the Family and Medical Leave Act. In the case that an employee were to take FMLA leave again, the same process must proceed.
With the release of employees, there is also a certification. The absence of an employee due to the conditions they may have may require certification as proof of the verification of absence. To certify an employee's leave, the employer may ask for other requirements, such as multiple medical opinions. All these prerequisites are at the employer's expense. Certain additional rules may apply to employees of local education agencies.
In most of the United States, employers and employees cannot refuse the application of the FMLA to FMLA-qualifying absences. But since Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014),"Escriba v. Foster Poultry Farms 743 F.3d 1236, 1244 (9th Cir. 2014) in those states under the jurisdiction of the Ninth Circuit, an "employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection."
Rights during leave Employees can have up to 12 weeks of unpaid leave for childbirth, adoption, to care for a close relative in poor health, or because of an employee's own poor health.(a)(2) and on adoption, see Kelley v Crosfield Catalysts 135 F2d 1202 (7th Circuit 1998) The same rules for federal employees were codified in –. In full, the purposes for leave are: to care for a new child, whether for the birth, the adoption, or placement of a child in foster care; to care for a seriously ill family member (spouse, son, daughter, or parent) (Note: Son/daughter has been clarified by the Department of Labor to mean a child under the age of 18 or a child over the age of 18 with a mental or physical disability as defined by the Americans With Disabilities Act, which excludes, among other conditions, pregnancy and post-partum recovery from childbirth);"FMLA-51: Department of Labor Opinion". Wage and Hour Division. November 28, 1994. Archived from the original on July 27, 2014. to recover from a worker's own serious health condition; to care for an injured service member in the family; to address qualifying exigencies arising out of a family member's deployment; or twenty-six work weeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember's spouse, son, daughter, parent, or next of kin (military caregiver leave).
A serious health condition may be an illness, injury, impairment, physical condition, or mental condition that involves inpatient care or involves continuing treatment by a health care provider."Fact Sheet #28P: Taking Leave from Work When You or Your Family Member Has a Serious Health Condition under the FMLA". Wage and Hour Division. U.S. Department of Labor. Retrieved February 12, 2024. A health condition is considered serious if it involves an overnight stay in a medical facility or if it requires continuing treatment by a health care provider.
Child care leave should be taken in one lump, unless an employer agrees otherwise.(a)(2) If a father and mother have the same employer, they must share their leave, in effect halving each person's rights, if the employer so chooses.(f) "the aggregate number of workweeks of leave to which both may be entitled may be limited to 12 workweeks"
Employers must continue to provide all employment benefits during the leave that the employee had accrued prior to the leave.(c). If an employee resigns, the employer is enabled to recoup costs. Under §2652(b) states are empowered to provide "greater family or medical leave rights".
Since 2008, the Department of Labor has allowed the spouse, child, or parent of an active-duty military member who is deployed overseas for 12 or more months to take up to 12 weeks of leave. Also, a military caregiver provision was added that would allow a caregiver to take up to 26 weeks of leave in order to actively care for a military member who requires medical attention for acute or ongoing conditions.
Substitute leave Under §2612(d)(2)(A) an employer can make an employee substitute the right to 12 unpaid weeks of leave for "accrued paid vacation leave, personal leave or family leave" in an employer's personnel policy. Originally the Department of Labor had a penalty to make employers notify employees that this might happen. However, five judges in the US Supreme Court in Ragsdale v Wolverine World Wide, Inc held that the statute precluded the right of the Department of Labor to do so. Four dissenting judges would have held that nothing prevented the rule, and it was the Department of Labor's job to enforce the law.535 US 81 (2002)
Right to return to job After unpaid leave, an employee generally has the right to return to their job, except for employees who are in the top 10% of highest paid and the employer can argue refusal "is necessary to prevent substantial and grievous economic injury to the operations of the employer."29 USC §2614(b). Under 29 USC §2612(b)(2) employers may transfer employees to another position with similar pay and benefits if health absences could be intermittent. Under §2618 special rules apply for employees of local educational agencies. In full, the rights during and after unpaid leave are to: the same group health insurance benefits, including employer contributions to premiums, that would exist if the employee were not on leave. restoration to the same position upon return to work. If the same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits, and responsibility. protection of employee benefits while on leave. An employee is entitled to reinstatement of all benefits to which the employee was entitled before going on leave. protection of the employee to not have their rights under the Act interfered with or denied by an employer. protection of the employee from retaliation by an employer for exercising rights under the Act. intermittent FMLA leave for their own serious health condition, or the serious health condition of a family member. This includes occasional leave for doctors' appointments for a chronic condition, treatment (e.g., physical therapy, psychological counseling, chemotherapy), or temporary periods of incapacity (e.g., severe morning sickness, asthma attack).