Responsibilities under the Family and Medical Leave Act.

Signed into law earlier this year, the Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees, both men and women, to take up to 12 weeks of unpaid, job-protected leave for: 1) the birth of a child; 2) placement of a child for adoption or foster care; 3) care of a child, spouse, or parent who has a serious health condition; and 4) the employee's own serious health condition.

On June 3, 1993, Interim Final Regulations designed to implement the Act were published by the U.S. Department of Labor.(1)The purpose of these regulations is to set forth the requirement of Title I (covering private employers and private agencies) and Title IV (covering collective bargaining agreements and other subjects) of FMLA.(*)

Effective Date

FMLA took effect on Aug. 5, 1993. With respect to eligible employees covered under the terms of a collective bargaining agreement (CBA), however, the Act takes effect on the date the CBA terminates, but no later than Feb. 5, 1994. According to the interim regulations, the period prior to the effective date must be considered by covered employers in determining employer coverage and employee eligibility.(2) The interim regulations also specify that any leave taken prior to the Act's effective date may not be counted for purposes of FMLA. Finally, eligible employees are entitled to FMLA leave even if the event occasioning the leave occurred prior to Aug. 5.

Coverage

FMLA applies to any employer who employs 50 or more employees for each working day during each of 20 or more calendar work-weeks in the current or preceding calendar year and is engaged in interstate commerce or is in any industry or activity affecting commerce. The regulations state that, where one corporation has an ownership interest in another corporation, it is considered a separate employer unless the two corporations are "joint employers" or an "integrated employer." The regulations provide tests for determining the existence of a joint employment relationship or an integrated employer.

Eligible employees. To be eligible for a leave under the Act, the employee must have:

* Been employed for at least 12 months at the time the leave commences (these 12 months need not have been consecutive).

* Completed at least 1,250 hours of service with such employer during the previous 12-month period (also determined at commencement of leave).

Part-time employees are counted in determining threshold coverage under the Act. Part-timers would, of course, also be eligible for leave if they satisfy the 12-month and 1,250 hours of service requirements. There is no limit established by either the Act or the interim regulations during which the employee must accumulate the required 12-month tenure.

The employer is permitted to choose one of four alternative methods for determining the "12-month period": calendar year, any fixed 12-month "leave year," a 12-month period measured forward from commencement of employee's first FMLA leave, or a rolling 12-month period measured backward from the date an employee uses any FMLA leave. An employer is well advised to initially make a wise selection because, even though it can change to another method of calculation, it must ensure that, during the transition period, employees do not lose any leave time because of the adoption of a different standard.

The Act excludes from coverage any employee who is employed at a work site at which his or her employer employs fewer than 50 employees if the total number of employees employed by the employer within 75 miles of the work site is fewer than 50. According to the interim regulations, where workers have no fixed work site (e.g., field salespersons), "work site" should be construed to mean the single site of employment to which the employee is assigned as a home base, from which work is assigned, or to which the employee reports.

Relationship to Other Laws

FMLA does not supersede existing state laws that provide greater family and medical leave rights than those provided by the Act. Further, an employee may be eligible for a leave under another federal law, such as the Americans with Disabilities Act (ADA) or Title VII of the Civil Rights Act of 1964. For example, ADA requires covered employers to, among other things, reasonably accommodate employees with disabilities unless making the accommodation would create an undue hardship on the employer's business. Included among the types of practices ADA considers as reasonable accommodations is granting an employee with a disability a reasonable leave period to seek treatment for a disability. Thus, an employee who is ineligible for a leave under the FMLA (e.g., because he or she has not completed 12 months of service) may nonetheless be entitled to a medical leave for a covered disability under ADA.

Serious Health Conditions

The interim regulations have now defined the types of health conditions (of a spouse, son, daughter, or parent) triggering the leave right:

* Any period of incapacity or treatment in connection with or consequent to inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility.

* Any period of incapacity requiring absence from work, school, or other regular daily activities of more than three calendar days that also involves continuing treatment by, or under the supervision of, a health care provider.

* Continuing treatment by, or under the supervision of, a health care provider for a chronic or long-term care health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three calendar days.

* Prenatal care.(3)

Spouses Employed by the Same Employer

Where two spouses are employed by the same employer (even if employed at different worksites), their aggregate leave is limited to 12 weeks during any 12-month period for the birth or placement of a son or daughter or to care for a sick parent. However, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 12 weeks of FMLA leave. For their own serious health condition, or to care for their spouse, son, or daughter, each spouse would be entitled to a total of 12 weeks of leave during any 12-month period.

Leave Conditions

Birth of child; placement of son/daughter for adoption or foster care. FMLA indicates that leave under these circumstances shall not be taken "intermittently" or on a "reduced leave schedule" unless the employer and employee agree otherwise. It also provides that employees must provide employers with 30 days' advance notice of such leave, or as much notice as is practical.

Caring for spouse, son, daughter, or parent because of serious health condition; employee's serious health condition. The Act permits leave to be taken for these purposes "intermittently" or on a "reduced leave schedule" when medically necessary, without the employers approval. However, if the employer doubts the validity of the need for the leave, it may require a second medical opinion. As with leaves for the birth or placement of a child, FMLA provides that employees must provide employers with 30 days' advance notice of such leave, or as much notice as is practical.

For example, an employee with early-stage cancer may be physically and mentally capable of performing his or her job, and indeed may continue to work while receiving treatment. However, if the employee must be physically absent from time to time in order to receive treatment and is temporarily unable to perform the functions of his or her position during the time of the treatments, the employee is eligible for leave under the Act for the time necessary to receive the required treatments.

Use of Accrued Leave Time

FMLA allows an employee to elect, or an employer to require the employee, to use accrued unused paid vacation, personal leave, or family leave (if provided by the employer) in the event of a leave for the birth or placement of a child for adoption or foster care, or to care for a son, daughter, spouse, or parent. The employer or employee may not apply unused medical or sick leave for this purpose. However, to the extent that an employee's pregnancy qualifies as a serious health condition, paid sick leave may be substituted for the birth of a child. For leaves to care for a seriously ill son, daughter, spouse, or parent, or for the employee's own serious health condition, an employee may elect, or an employer may require the employee, to use any accrued unused paid vacation, personal leave, or medical or sick leave.

According to the interim regulations, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying on the basis of information provided by the employee.(4) If an employee takes paid leave and neither the employee nor the employer designates it as FMLA leave, the leave does not count against the employee's FMLA leave entitlement. Thus, it is important that all FMLA leaves be designated as such.

Reinstatement Rights after Leave

Eligible employees taking leave under FMLA are entitled upon return from leave to be restored to their former positions, or to equivalent positions with equivalent employment benefits, pay, and other terms and conditions of employment. "Equivalence" is not merely "comparability" or "similarity." According to the interim regulations, an equivalent position "must have the same pay, benefits, and working conditions, including privileges, perquisites, and status [and] must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority."(5) However, employers may deny restoration to employment to any "key" salaried employee who is among the highest 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed if:

* The denial is necessary to prevent substantial and grievous economic injury to the operations of the employer.

* The employer notifies the employee of its intent to deny restoration on such basis at the time the employer determines that such injury would occur and, if the employee is on leave, the employee elects not to return to employment after receiving such notice.

Leave and COBRA 

The taking of a leave under FMLA is not a "qualifying event" under the Consolidated Omnibus Budget Reconciliation Act of 1985--the federal medical benefits continuation statute.

Posting of Notice

Consistent with other laws governing the workplace, all covered employers must prominently post in a conspicuous place a notice summarizing the Act's provisions. This notice must be posted so that it can be readily seen by employees and applicants. A penalty of $100 per offense will be assessed for willful violations of the Act's posting requirements.

References

1. 29 C.F.R. [sections of] 825.

2. 29 C.F.R. [sections of] 825.102.

3. 29 C.F.R. [sections of] 825.114(a).

4. 29 C.F.R. [sections of] 825.208(b).

5. 29 C.F.R. [sections of] 825.215(a).

(*) The interim regulations do not set forth the requirements of Title II of the Act, which covers most Federal employees.