Understanding FMLA with cases

varsha sarkar

August 21, 2023

11:51 am

The Family and Medical Leave Act (FMLA) is a federal law originally enacted in 1993 and amended in 2008 (and again in 2009). The overall purpose of the FMLA is to mandate that certain large employers provide a balance between the demands of the workplace and the needs of families by providing job-protected, unpaid leave to eligible employees. The FMLA amendments of 2008 and 2009 extended the FMLA to certain military-related situations. The amendments provide leave for qualifying military exigencies and leave for families of covered military members.

Employer Coverage

The FMLA applies to private employers that have employed at least 50 employees during 20 or more calendar weeks during the current or preceding calendar year. The FMLA also applies to public agencies and to public and private elementary and secondary schools (with some special rules), regardless of the number of employees employed.

Private employers with fewer than 50 employees may be covered by a state family, medical or pregnancy leave law. Supervisors and HR professionals may also be held individually liable for violating the FMLA. Therefore, the reach of family and medical leave laws is quite broad. All employers should be aware of the federal and state laws that may pertain to them.

Parental Leave

The FMLA contains special rules for the birth, adoption, or foster care placement of a child. Leave to care for a healthy newborn or newly placed adopted or foster child must be taken within 12 months of the birth or placement. This parental leave is available to both mothers and fathers; however, if married parents work for the same employer, the amount of leave available for bonding with the child is limited to a combined total of 12 weeks. This rule does not apply to unwed parents. See U.S. DOL Opinion Letter FMLA-66.

To clarify further, the FMLA provides for five situations when an employee may take leave related to the birth, adoption, or foster care placement of a child:

  1. Both parents may take FMLA to leave for the actual birth of their child.
  2. Both parents may take FMLA to leave prior to the actual adoption or foster care placement of a child if the absence from work is required for the adoption or foster care placement to proceed (for example, to attend required counselling sessions, appear in court, consult with an attorney or doctor, or travel to another country).
  3. Both parents may take FMLA to leave to be with a healthy newborn or a newly adopted or foster child within 12 months of the birth or placement. Married parents employed by the same employer, however, are limited to a combined total of 12 weeks of leave.
  4. The mother may take FMLA to leave for her own serious health condition related to her pregnancy. The spouse may take FMLA if needed to care for the pregnant spouse, who has a serious health condition related to the pregnancy or birth.
  5. Both parents may take FMLA to leave if needed to care for a newborn or newly adopted or foster child with a serious health condition.

All employers with 50 or more employees are required to post a notice about the FMLA where employees can see it. Copies of the notice are available from the U.S. Department of Labour’s Wage and Hour Division. If your employer fails to post the notice, you cannot be penalized if you do not give your employer advance notice that you will need leave. Also, the U.S. Department of Labour can fine your employer if their failure to post the notice was intentional. In addition, when you request family or medical leave under the FMLA, your employer is required to give you information about the medical certification and other requirements that will apply to your specific leave.

The FMLA provision that allows lawsuits against an employer, even a state agency, for interfering with an employee’s right to take leave to care for a spouse was particularly addressed in the Court’s ruling. Nevertheless, the ruling did not specifically address whether states may be held liable for restricting other employee rights under the FMLA (such as the right to request leave for a serious health condition, to give birth to a child or adopt a kid).

varsha sarkar

August 21, 2023

11:51 am

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