Family and Medical Leave Act
The Family and Medical Leave Act (FMLA), which became law in 1993, applies to public and private employers. Subject to greater protections than they may have under other federal or state laws or collective bargaining contracts, workers at employers covered by the law are entitled to 12 weeks of unpaid leave during any 12 month period as provided for in their employers’ FMLA policies. The key protection available under the Family and Medical Leave Act is that employees returning from leaves must be restored to their same or similar positions with equivalent pay and benefits. This entry describes what the law requires, including special provisions for schools.
Who Is Included
The FMLA defines private employers as those engaged in commerce or industry with 50 or more eligible employees each working day during 20 or more calendar weeks in the current or preceding calendar year. In addition, the FMLA covers public agencies or employers and their political subdivisions, the most important of which, for this entry, are school boards. The Family and Medical Leave Act also specifically applies to private elementary and secondary schools.
The FMLA includes a special rule for schools. According to this rule, any school system “would not be eligible for FMLA leave if the school has fewer than 50 employees and there are no other schools under the jurisdiction of the same employer (usually a school board) within 75 miles” (29 U.S.C. § 825.600(b)). Regardless of size and level of coverage, all schools are subject to the Family and Medical Leave Act’s record-keeping requirements. In order to be covered by the FMLA, employees, including both full- and part-time, must have worked for their employers for at least 12 months, providing at least 1,250 hours of service during the year immediately preceding the start of leave.
Rules About Taking Leave The law specifies 12 weeks of unpaid leave in a 12-month period. When employers create their policies, they may use the calendar year; any 12-month leave period such as a fiscal year; or a 12-month span measured forward, or backward, from the first FMLA leave date. If employers offer paid leave for fewer than 12 weeks, the remainder of a leave may be without pay. However, if employees have accrued paid vacation, personal, or family leave, they may elect, or employers may require, these to be substituted for unpaid leave. If leave plans do not allow for substitutions, then they are not permitted. Employers may modify their policies as long as they afford workers 60 days notice.
Employees may request work leave under two broad categories. The first, child care, covers the birth, adoption, or foster care assumption of a child within 12 months of the event. The second, a “serious health condition,” pertains to the illnesses of spouses, children, or parents, or one rendering employees unable to perform job functions. The Family and Medical Leave Act defines a serious health condition as one requiring treatment from or under the direction of health care providers, such as doctors of medicine and osteopathy, podiatrists, dentists, clinical psychologists, optometrists, and nurse practitioners. The three categories of serious health conditions are those requiring inpatient care; those necessitating absences from work, school, or other daily activities in order to obtain continuing treatment; and those including prenatal care or continuing treatments for chronic or long-term conditions that are incurable or so serious that if left untreated would likely result in incapacities for more than three days. Spouses who work for the same employer must share the 12 week allowance for the birth of a child or to care for sick parents, but each can take 12 weeks of unpaid leave to look after sick children.
Employees may take leave for 12 consecutive weeks or may seek intermittent or reduced leave. Intermittent leave is taken in separate blocks of time for single illnesses or injuries rather than over continuous periods of time. Reduced leave occurs when employees seek changes to part-time or flexible scheduling after childbirth. If this happens, employers may temporarily transfer workers as long as there are no reductions in salary and benefits.
Individuals requesting leave for child care or serious medical conditions must provide 30 days notice or as much as is practicable. Employees seeking leave for foreseeable treatments due to serious medical conditions must make reasonable efforts to schedule them so as not to cause undue disruptions at work. While leave policies may waive notice requirements, if they remain in effect but employees do not comply, employers may deny leave requests for up to 30 days.
Employers may require certification from health care providers before granting leaves. Certification should include the dates when conditions started, their likely duration, and statements of inability to perform job functions. Leaves to care for family members should include estimates of how long it will take to provide care. If employers doubt the validity of certifications, they may, at their own expense, obtain second opinions. If the two opinions conflict, employers may seek a third, at their own expense, from a health care provider that is mutually acceptable to both parties. A third opinion binds both parties.
Employees who are asked to provide certification must be given at least 15 days to comply. Employers may seek recertification at reasonable intervals of not less than 30 days. If employees request extensions or are unable to return to work after 30 days, or if employers doubt the continuing validity of certifications, they need not wait 30 days before seeking recertification. Leave policies should address consequences for employees who fail to provide certification.
Special School Provisions
Special rules apply to school personnel, such as teachers and special education assistants working primarily in instructional capacities. These rules are inapplicable to instructional aides whose primary jobs do not include teaching and to auxiliary personnel such as counselors, psychologists, or curriculum specialists and cafeteria workers, maintenance staff, and bus drivers. When teachers request intermittent or reduced schedule leaves for foreseeable medical care and will miss more than 20% of the total of working days during leave periods, school systems have two options. Boards may either require teachers to take leaves for periods not to exceed the length of their planned treatments or may temporarily transfer them to other jobs with equivalent pay and benefits.
Three special rules apply for leaves taken near the end of school terms. First, if teachers wish to begin leaves more than five weeks prior to the end of terms, school boards may require them to wait until the end of the term if they will be gone for at least three weeks and they would return to work during the three weeks before the end of term. Second, if leaves are less than five weeks before the end of term, officials may require teachers to wait until the end of term if leaves are to be more than two weeks long and their returns would be during the two weeks prior to the end of term. Third, if requested leaves are less than three weeks before the end of term and greater than five working days, boards may require teachers to wait to take leaves until the end of term.
Rules About Returning
In general, employers are required to provide returning workers with equivalent jobs, pay, and benefits. Even so, if employers have good faith reasons to eliminate the jobs of employees who are on leaves, and do not act out of retaliation, then, subject to proving that they acted with proper motives, positions may be terminated. Employers must continue to provide pre-existing group health plans to employees who are on leave on the same basis as if they worked continuously. Further, employees are entitled to new plans, benefits, or changes in group coverage to the same extent as if they were not on leave along with notification of any opportunities to change plans or benefits.
Where health care plans require employees to contribute, leave policies should include terms on how payments will be made during absences. If employees do not pay premiums, employers have two options: They may either continue making payments to keep policies active and collect from employees when they return to work, or they may discontinue coverage after 30 days. If coverage for health lapses while they are away from work, returning employees are entitled to reinstatement without qualifying periods. If employees fail to return to work due to serious health conditions or situations beyond their control, employers may not recover contributions that they made for health care. Employers may seek reimbursements from employees who do not return to work due to changing jobs.
Employers may require staff to provide certifications of fitness to return to work. Returning employees who are no longer qualified for jobs must be given reasonable chances to meet new standards. The FMLA contains a special section for returning instructional personnel requiring boards to make decisions about restoring teachers to equivalent positions in light of institutional policies, practices, or bargaining agreements.
Along with protecting employees from being fired for claiming their rights, the FMLA requires employers to make, keep, and preserve records demonstrating their compliance. Pursuant to this requirement, the Department of Labor has an annual right to review the Family and Medical Leave Act records of employers and may examine them more frequently if necessary to investigate alleged violations.
Employees who believe that their rights have been violated may file suit in federal or state court within two years of alleged violations. Employees who can demonstrate that their employers willfully or intentionally failed to comply with the FMLA have three years within which to file suit. Employers who violate the FMLA may have to reinstate or promote employees whose rights have been violated and may also be liable for up to 12 weeks of wages, benefits, and reasonable attorney fees for these employees.
Charles J. Russo
- Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
- Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.