Tuesday, October 21, 2014

Family and Medical Leave Act: An Overview

If you have spent any time reading The Workplace Report, you have probably noticed that a number of our articles deal with the Family and Medical Leave Act, or FMLA. The FMLA has come to be a frequent source of employment litigation, and continues to be one of the areas where we receive a number of questions. Therefore, having a basic familiarity with the FMLA is essential for both employers and employees. Below, we have provided an overview of the important law, with a particular focus on the areas that often create problems between employees and employers.

The FMLA, enacted in 1993, requires most employers to provide employees up to 12 weeks of unpaid leave for medical or family emergencies. Specifically, the FMLA applies to all employers with at least 50 employees, as well as all to federal, state, and local governments. All employees who have worked for the employer for at least 12 months or 1,250 hours are covered by the Act. Some family or medical emergencies that entitle an employee to 12 weeks of unpaid leave include: a serious illness or injury to the employee or one of the employee’s family members (defined as a spouse, parent, or child under 18, or parent), the birth or adoption of a child, a planned medical procedure, or the military deployment of a family member.

When an employee knows in advance that he will need leave, the FMLA requires him to tell his employer. An employee must tell his employer 30 days before he will take leave for a planned medical procedure or, if practicable, the birth or adoption of a child. Even when an unexpected emergency arises, the employee must at least tell his employer why he is taking leave. An employee cannot simply demand leave without providing a reason, or take leave without telling his employer. If the employee fails to notify his employer, or does not provide a reason for his leave, the employer may deny the employee leave, and discharge him if he takes it, no matter how serious the reason for the leave.

An employee may also take intermittent leave under the FMLA. If an employee can only work part-time due to injury or illness, he is permitted to take 12 weeks, or 60 days, of intermittent leave over a 12-month period. For example, an employee receiving chemotherapy may take one unpaid day of leave a week over the course of a year.

The employer must continue to keep his employee on the same healthcare plan that the employee received before the leave. However, an employer may still require the employee to make premium contributions during the leave, and can discontinue the healthcare if the employee fails to pay his premiums.

Once an employee returns from FMLA leave, he is entitled to be reinstated to the position he held before taking the leave. Furthermore, the employee may not lose any of the benefits he possessed. However, the FMLA does not require an employer to allow an employee to accrue seniority while he is away.

An employer may not retaliate against an employee for taking FMLA leave. For example, an employee cannot be fired or disciplined after taking FMLA leave solely because he took the leave. In order to prove that an employer retaliated against an employee, the employee must prove that the employer acted with a discriminatory motive against the employee. This can be proven through direct or circumstantial evidence.

If an employee’s rights under the FMLA are violated, he is entitled to compensation from the employer for any wages, salary, employment benefits, or any other compensation lost as a result of the violation. The employee is also entitled to front or backpay as a result of the employer’s violation of the employee’s rights.


The FMLA has emerged as one of the most important laws governing the workplace. Every employer should be familiar with it, because even an innocent violation can subject the employer to a lawsuit. While this blog post provides an overview of the FMLA, it is just that: an overview. It is still best to consult an attorney with FMLA-related questions.