The federal Family and Medical Leave Act of 1993 (FMLA), 28 U.S.C. § 2601 et seq., applies to most employers with fifty or more employees. The FMLA requires covered employers to grant up to twelve weeks of family and medical leave each year to eligible employees.

This first section of these materials is a primer on the FMLA. Employers will find here “the basics” -the who, what, where, when, and some of the “why.” The “how” -how to put together a policy and how to administer your policy -may be found in Section V.

A. Which employers are covered by the FMLA?

A “covered” employer is one that employs fifty (50) or more employees each working day during each of twenty (20) or more calendar workweeks in the current or preceding calendar year, including successor employers, schools, and public agencies.

–“Employee” includes: full time, part-time, hourly, salaried, exempt, and non-exempt employees.
–If an employee’s name appears on the payroll for a given week, the employee is deemed to have been employed for that week. Also, any employee on leave of any kind generally counts towards the required total of fifty.

Sometimes, an employer with fewer than fifty employees may be “covered” if it meets the “integrated employer test” (two or more businesses may constitute one employer if they have one or more of the following characteristics: common management; interrelations between operations; centralized control of labor relations; and a high degree of common ownership or financial control) or the “joint employers” test (a joint employment relationship may exist if two employers have an arrangement to share an employee’s services or if they share control of the employee, whether directly or indirectly).

B. Which employees are eligible to take FMLA leave?

In general, an employee is eligible to take FMLA leave if he or she has been employed by the employer for a minimum twelve (12) months total (current and prior employment) and if he or she has worked at least 1250 hours for the employer during the 12-month period immediately preceding the commencement of the leave. Note that the employee need not have worked for the employer for 12 consecutive months, as long as the 1250-hour requirement is met.

For employers with multiple sites, the employee must have worked on a site at which fifty (50) or more employees work, unless the total number of employees within seventy-five (75) miles of the worksite is 50 or more.

Note that in order to be eligible to take FMLA leave, an employee must not have used up his or her 12-week allotment of leave during the current “leave year” (see Section V.G).

C. What are the legitimate reasons for taking FMLA leave?

An eligible employee may take family and medical leave (up to twelve weeks) only for one of the four following reasons:

–because of the birth of a child and to care for the newborn child
–because of the placement of a child with the employee for adoption or foster care;
–because the employee is needed to care for a family member (son or daughter, spouse, or parent) with a serious health condition; or
–because the employee’s own serious health condition makes the employee unable to perform the functions of his or her job.

Leave taken due to the birth, placement, or adoption of a child must be taken within one year of the qualifying event.

In the case of leave taken due to a placement or adoption, the child must be under 18 years of age.

For FMLA purposes,

–“Son or daughter” means a biological, adopted, or foster child, a step child, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability,” i.e., requires assistance or supervision in three or more activities of daily living such as grooming, bathing, dressing, eating, cooking, cleaning, shopping, paying bills, maintaining a residence, using telephones, and so on.
–“Spouse” means a husband or wife as recognized under state law for purposes of marriage in the state where the employee resides. Note that the State of Maine does not recognize “common law” marriage.
–“Parent” means a biological parent or an individual who stands or stood in loco parentis to an employee when the employee was a son or daughter as defined above. The term “parent” specifically excludes “in-laws.”

D. What is the definition of a serious health condition?

There are six definitions of a serious health condition. A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves one of the following:

(1)Hospital Care

Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or consequent to such inpatient care.

“Incapacity” means, for purposes of the FMLA, the inability to work, attend school, or perform other regular daily activities due to the serious health condition (or due to treatment for the condition, or due to the need for recovery from the condition).

2) Absence Plus Treatment

A period of incapacity of more than three consecutive days (including any subsequent treatment or period of incapacity relating to the same condition), that also involves:

a) Treatment two or more times by a health care provider, by a nurse or Physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider;

b) Treatment by a health care provider on at least one occasion which results in a “regimen of continuing treatment” under the supervision of the health care provider.

“Treatment” includes examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations.

A “regimen of continuing treatment” includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition. A regimen of treatment does not include the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking, fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider.

3) Pregnancy

Any period of incapacity due to pregnancy, or for prenatal care.

4) Chronic Conditions Requiring Treatments

A chronic condition which:

a) Requires periodic visits for treatment by a health care provider, or by a nurse or physician’s assistant under direct supervision of a health care provider;

b) Continues over an extended period of time (including recurring episodes of a single underlying condition);

c) may cause episodic rather an a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc,)

5) Permanent/Long-term Conditions Requiring Supervision

A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective, The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

6) Multiple Treatments (Non-Chronic Conditions)

Any period of absence to receive multiple treatments (including any period of Recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc,), severe arthritis (physical therapy), kidney disease (dialysis).

E. What is the employee’s right to reinstatement?

Employers must reinstate employees who take FMLA leave to the prior position or to an equivalent position. An “equivalent position” is one with equivalent benefits, pay, and other terms and conditions of employment, without loss of accrued and unused benefits.

There are some exceptions to the FMLA’ s rule regarding reinstatement. Employees whose employment would have been terminated even if they had not Taken leave are not protected from the vicissitudes of modern business. Downsizings, layoffs, and outsourcing may be implemented even when an affected employee is on FMLA leave. When the employee seeks restoration, the employer must be able to show that the employee would not have been employed if he or she had not taken the leave of absence. Similarly, an employee may be terminated for a performance or other valid reason if such termination would occur whether or not the employee was on leave.

Employees who have not provided employers with an appropriately requested “fitness for duty” certification may be denied restoration to work. Employees who have fraudulently obtained FMLA leave may be denied restoration to work.

Another exception to the general rule of restoration is for certain highly paid employees who may be designated as “key employees.” A key employee is an employee who is (1) salaried (not hourly) and (2) among the top 10% of all employees working within a 75-mile radius of the key employee’s worksite in terms of pay (measured among all employees, salaried and hourly alike). If an employee is a key employee, and if the employer has designated the employee as a key employee at the beginning of the FMLA leave, the employer may deny restoration if the employer can show that the such restoration (as opposed to the leave itself) would cause “substantial and grievous economic injury” to the employer’s operations.

–Employers should consider whether they are able temporarily to replace or do without the key employee. If permanent replacement is unavoidable, then the employer should consider the cost of reinstating the key employee in the course of evaluating whether there would be substantial and grievous economic injury.

–There is no precise test for what amounts to substantial and grievous economic injury .At one end of the spectrum, if the economic viability of the business would be threatened by restoration of the key employee, then clearly the test has been met. At the other end of the spectrum are minor inconveniences and costs that employers normally encounter in the course of doing business. Restoring most key employees will fall somewhere in between, and each case must be evaluated on an individual basis.

–The test for substantial and grievous economic injury is less stringent and less difficult to meet than the test for “undue hardship” under the ADA.

F. What benefits are employees entitled to under the FMLA?

Unpaid leave of absence of up to 12 week (usually). See section H below, as well as section V -F for a discussion of when an employee must be paid during FMLA leave.

Continuation of current level of health benefits. An employer must provide continuous coverage under its health plan to the employee on FMLA leave on the same terms and conditions as they would have been provided had the employee continued in employment and not taken leave. If the employer normally pays for all or part of family medical coverage, then the employer must continue to pay for the same proportion of coverage during the FMLA leave.

The FMLA does not affect other benefits of employment, and the employer has the right to limit such benefits during FMLA leave. The FMLA is a “minimum,” however; many employers continue some or all of the employee’s other benefits during leave. Also, some employers may be bound by the terms of collective bargaining agreements as to which benefits will continue during family and medical leaves of absence.

G. What are intermittent leave and a reduced leave schedule?

Intermittent leave is FMLA leave taken periodically rather than in one. consecutive period of time. Examples are occasional days off due to severe migraine headaches, occasional mornings off for prenatal care, or periodic absences for chemotherapy treatments and recovery from such treatments.

A reduced leave schedule is FMLA leave taken in the form of a part-time schedule. For example, an employee may work half-days for several weeks after returning to work following a heart attack.

Intermittent leave or a reduced leave schedule is not required in every. circumstance. Employers may choose, but are not required, to provide – intermittent or a reduced leave schedule to employees taking leave for a birth or placement of a child. For employees taking FMLA leave due to their own serious health condition or the serious health condition of a child, parent, or – spouse, intermittent leave or a reduced leave schedule must be granted when the health care provider certifies one of the following circumstances:

–The employee has a serious health condition and a medical need for leave, and such medical need can be best accommodated through an intermittent or reduced leave schedule; or

–The employee’s child, parent, or spouse has a serious health condition, and the health care provider has determined that the employee is “needed to care for” the family member on an intermittent or part-time basis. This care includes physical care (when the family member is unable to attend to his or her own basic needs or needs transport to obtain treatment) and psychological care (when comfort and reassurance would be beneficial to a family member receiving inpatient or at-home care).

The employee must attempt to schedule such leave so as not to disrupt the employer’s operations.

When the need for intermittent or part-time leave is foreseeable, the employer may reassign the employee temporarily to an alternative position that better accommodates the intermittent or part-time schedule. The alternative position may be lower in status and responsibility but the employee must receive the same pay and benefits that he or she normally receives.

H. Substitution of Paid Leave

Although FMLA leave is unpaid generally, an employer may choose to require employees to use up any paid leave they have accrued. The only limitation is that accrued leave may not be used for anything that it is not normally used for.

For example, if an employer does not normally allow employees to use “sick days” for taking care of family members, then the employer may not require the employee to use up accrued “sick days” for any type of leave except leave taken due to the employee’s own serious health condition. Even if the employer does not choose to require employees to use up accrued paid leave, the employee may always choose to use up accrued leave during FMLA leave.

Once the accrued leave has been used up, the remainder of the leave may be unpaid.

Many employers have short term disability (“STD”) policies, or similar benefits, that provide for whole or partial salary continuation during illness or injury .In most cases involving workplace injuries, the employee will receive workers’ compensation benefits during any leave of absence. In either case, employers may not require employees to use up accrued paid leave during any period of time covered by STD or workers’ compensation benefits.

I. What certifications and verifications may the employer require?

Employers may require employees’ health care providers to certify that the employee has a “serious health condition.”

–Under the FMLA, employers must accept certifications from any professional defined as a “health care provider,” including th6 following categories: doctors of medicine or osteopathy, podiatrists, dentists, clinical psychologists, optometrists, chiropractors (for treatments specific to manipulations of the spine to correct subluxation demonstrable in an X-ray), nurse practitioners, nurse-midwives, clinical social workers, Christian Science practitioners (officially listed), and any other health care provider from whom an employer or the employer’s group health plan will accept certification of a serious health condition to substantiate a claim for benefits.

–All of the professionals listed above must be authorized by the State within which they practice, and must be practicing within the scope of their authority under State law in order to qualify as a “health care practitioner” from whom the employer must accept certification.

When an employer does not agree with the certification provided by an employee in response to the employer’s initial request for certification, the employer may seek a second certification by a health care provider of the employer’s choosing and to be paid for by the employer. Except in geographical areas with limited access to health care providers, employers may not choose for the second certification any health care provider with whom they regularly contract for any purpose. Should the first and second certifications disagree as to the need for FMLA leave or the extent of leave that is needed, the employee is entitled to a third certification by a health care provider that the employee and the employer mutually agree upon. The third certification is binding on both the employee and the employer.

When an employee is taking FMLA leave in the form of intermittent leave or a reduced leave schedule, the employer may require periodic recertification of the medical need for such leave.

Except in cases involving intermittent leave, employers may require employees. to supply a “fit for duty” certification before allowing them to return to work.

J. What is a “Violation” of the FMLA?

The FMLA prohibits interference with an employee’s rights under the law. More specifically, the following actions or conduct by employers are considered to be “violations” of the FMLA:
Interference with, restraint, or denial of an employee’s right to take FMLA. leave.

–Failure to provide leave or failure to restore to the same or an equivalent position would generally fall under this category of violation.

–This category also includes when an employer manipulates the circumstances in order to avoid responsibilities under the law, such as by transferring employees to other worksites to avoid reading the 50-employee threshold, changing the essential functions of the job just to avoid an employee taking leave, or reducing an employee’s hours simply to avoid allowing that employee to reach the 1250-hour threshold.

Discrimination against any employee who has taken or is taking FMLA leave.

–This includes discriminating against applicants or employees who have taken FMLA leave. Also, employers may not take FMLA-covered leave into account in any disciplinary decisions or count it toward days missed under a “no-fault” attendance policy.

Retaliation against any person (not only employees) for opposing any illegal act under the FMLA or for participating in any proceeding undertaken pursuant to the FMLA (whether in court or with the Department of Labor)

–“Participation” includes filing a charge, giving testimony, or giving information in connection with an inquiry or investigation.

Failing to adhere to the requirements of the statute or the regulations.

–Thus, according to the U.S. Department of Labor (DOL), violations of the FMLA that may subject an employer to liability include such “technical” violations as a failure to give proper notice.

K. What enforcement rights does the employee have if the employer violates the FMLA?

Employees who believe that their rights under the FMLA have been violated may:

–File a complaint (or have another person file a complaint on the employee’s behalf) with the DOL; or
–File a private lawsuit (civil action).

The DOL will investigate any complaints (complete with subpoena power) and issue an advisory opinion as to whether a violation has occurred. The DOL also may bring suit on behalf of an aggrieved employee.

Employees generally have two or three years to bring a civil action against an employer. The two-year statute of limitations applies generally. In cases in which the employee can show a “willful” (knowing and intentional) violation, however, the employee has three years to bring a civil action.

Damages available in a civil action include:

–lost pay and benefits;
–in cases in which there are no lost pay or benefits, any actual monetary losses, e.g., the cost of paying for another individual to care for a family member with a serious health condition (up to twelve weeks’ worth);
–interest on any amount of lost pay and benefits or actual monetary losses, if no lost pay and benefits;
–in cases involving a “willful” violation, liquidated damages in the amount of the lost pay and benefits or actual monetary losses, if no lost pay and benefits;
–equitable relief such as reinstatement or promotion; and
–attorneys’ fees and costs (including expert witness fees).

L. Miscellaneous

Employers are required to post a U.S. Department of Labor (DOL) notice about the FMLA in a conspicuous place where notices to employees and applicants are customarily posted.

The actual notice may be obtained from the DOL’s Wage and Hour Division (207-780-3344); ask for “WH Publication 1420.” The penalty for not posting the required notice is $100 per offense. A copy of the required notice appears as

Appendix C to 29 C.F .R. § 825.