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Family and Medical Leave Act of 1993


1801. General Information

The U.S. Department of Labor's Employment Standards Administration, Wage and Hour Division, administers and enforces the Family and Medical Leave Act (FMLA) for all private, State and local government employees, and some federal employees. Most Federal and certain congressional employees are also covered by the law and are subject to the jurisdiction of the U.S. Office of Personnel Management or the Congress.
FMLA became effective on August 5, 1993, for most employers. If a collective bargaining agreement (CBA) was in effect on that date, FMLA became effective on the expiration date of the CBA or February 5, 1994, whichever was earlier.


Appendix C to Part 825 - Notice to Employees of Rights under FMLA

1802. Eligibility Criteria

To be eligible for FMLA benefits, an employee must:
  1. work for a covered employer;
  2. have worked for the employer for a total of 12 months;
  3. have worked at least 1250 hours over the previous 12 months; and
  4. work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.

1803. Employee Coverage

FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. The calendar year method, January through December, is used by the state of California, except for Military Caregiver Leave where the 12-month period is measured by counting forward from the first day the employee takes the leave and ends 12 months later.

Military Family Leave Provisions

Effective January 16, 2009, the Department of Labor amended the Family Medical Leave Act by including two new leave provisions - the Military Caregiver Leave and the Qualifying Exigency leave (PML 2009-028, issued June 15, 2009). The law contains provisions on employer coverage; employee eligibility for the law's benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after the leave; notice and certification of the need for FMLA leave; and, protection for employees who request or take FMLA leave. The law also requires employers to keep certain records.

Military Caregiver Leave (MCL)

Eligible employees are entitled to take up to 26 weeks of unpaid, job-protected leave in a 12-month period to care for a covered service member with a serious illness or injury incurred in the line of active duty. This leave may be taken intermittently when medically (psychological and physical care) necessary. Covered service members include current members of the Regular Armed Forces, National Guard or Reserves, veterans undergoing medical treatment, or recuperation, and members who are on a temporary disability retired list. The veteran must have been a member of the Armed Forces (including the National Guard or Reserves) at any time within five (5) years preceding treatment.
Employees who are eligible for MCL: the service member's parent, spouse, or child and next of kin. For purposes of this leave, the definition of son or daughter includes the service member's "biological, adopted or foster child, stepchild, legal ward or child for whom the service member stood in loco parentis, and who is of any age." The definition of parent includes the service member's "biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the service member." However, parents-in-law are not included. Next of kin is defined as the service member's nearest blood relative (other than a spouse, parent, or child) in the following priority order - custodial blood relatives, siblings, grandparents, aunts and uncles, and first cousins. Family members sharing the same relationship (e.g., all siblings) will all be considered next of kin and each will be entitled to leave for care giving. However, a husband and wife who are FMLA eligible and work for the same employer may be limited to a combined total of 26 weeks' caregiver leave.
MCL is not in addition to the 12 weeks of FMLA leave normally available to eligible employees, but is aggregated with all other types of FMLA qualifying leave during the applicable 12-month period. The 12-month period begins on the day the employee begins caregiver leave and ends 12 months thereafter.
Because the military caregiver leave is available on a per service member per injury basis, an eligible employee may be entitled to take more than one such leave during the course of his or her employment to care for different service members or for the same service member with a subsequent injury or illness. In such circumstances, leave is still limited to no more than 26 weeks during the applicable period.
A certification form (link) is required to be completed by either: (1) a United States Department of Veterans Affairs ("VA") health care provider; (2) a DOD TRICARE network authorized private health care provider; or (3) a DOD non-network TRICARE authorized private health care provider.

Qualifying Exigency Leave (QEL)

Eligible family members will be entitled to take up to 12 weeks of FMLA leave for "qualifying exigencies" arising out of a covered military member's active duty status, or call to active duty, in support of a contingency operation or deployment to a foreign country. This leave may be taken intermittently. QEL is not available to family members of military members who are retired members of the regular Armed Forces, a state Reserve or National Guard unit, or are called to active duty by a state rather than the federal government - it is available only to the family members of regular Armed Forces, National Guard or Reservists called to federal active duty.
QEL includes the following eight events:
  • issues arising from short-notice deployment (i.e., deployment to active duty seven or less days prior to the date of deployment)
  • military events, ceremonies, or programs related to active duty or related activities
  • childcare and school activities
  • financial or legal appointments
  • counseling
  • rest and recuperation
  • post-deployment activities (e.g., arrival ceremonies and reintegration briefings)
  • additional activities agreed upon by the employer and employee.
 A separate certification form (link) is used in connection with this leave. As part of the certification process, the employee is required to provide copies of the military member's orders or other military documentation, facts regarding the exigency, and dates of the military member's active duty service and beginning of the exigency.

1804. Employer Coverage

FMLA applies to all:

  • public agencies, including State, local and federal employers, local education agencies (schools), and
  • private sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce, including joint employers and successors of covered employers.

1805. Leave Entitlement

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
  • for the birth and care of the newborn child of the employee;
  • for placement of a son or daughter for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.
 Spouses employed by the same employer are jointly entitled to a combined total of 12 workweeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, and for a parent who has a serious health condition.
Under some circumstances, employees may take FMLA leave intermittently, which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule. If FMLA leave is used for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer's approval.
Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave.
The employer is responsible for designating if an employee's use of paid leave counts as FMLA leave based on information for the employee.
"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either:
  • Any period of incapacity or treatment connected with inpatient care (i.e., overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or
  • Continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to:
    1. A health condition (including treatment therefor, or recovery therefrom) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:
      • treatment two or more times by or under the supervision of a health care provider; or
      • one treatment by a health care provider with a continuing regimen of treatment; or
    2. Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or
    3. A chronic serious health condition, which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a heath care provider is not necessary for each absence; or
    4. A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or
    5. Any absences to receive multiple treatments of restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatment for cancer).
 "Health care provider" means:
  • Doctors of medicine or osteopathy authorized to practice medicine or surgery by the State in which the doctors practice; or
  • Podiatrist, dentists, clinical psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist) authorized to practice, and performing within the scope of their practice, under state law; or
  • Nurse practitioners, nurse-midwives and clinical social workers authorized to practice, and performing within the scope of their practice, as defined under state law; or
  • Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or
  • Any health care provider recognized by the employer or the employer's group health plan benefits manager.

1806. Maintenance of Health Benefits

A covered employer is required to maintain group health insurance coverage for a employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.
In some instances, the employer may recover premiums paid to maintain health coverage for an employee who fails to return to work from FMLA leave.

1807. Job Restoration

Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and condition of employment.
In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy.
Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:
  • Notify the employee of his/her status as a key employee in response to the employee's notice of intent to take FMLA leave;
  • Notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;
  • Offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and
  • Make a final determination as to whether reinstatement will be denied at end of the leave period if the employee then requests restoration.
 A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.

1808. Notice and Certification

Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.
Employers may also require employees to provide:
  • Medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member;
  • Second or third medical opinions (at the employer's expense) for the employee only and periodic re-certification; and
  • Periodic reports during FMLA leave regarding the employee's status and intent to return to work.
 When intermittent leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer's operation.
Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this posting requirement may be subject to a fine of up to $100 for each separate offense.
Also, covered employers must inform employees of their rights and responsibilities under FMLA, including giving specific written information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave.

1809. Unlawful Acts

It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related FMLA.

1810. Enforcement

The Wage and Hour Division investigates complaints. If violations cannot be satisfactorily resolved, the U.S. Department of Labor may bring action in court to compel compliance. Individuals may also bring a private civil action against an employer for violations.

1811. Other Provisions

Special rules apply to employees of local education agencies. Generally, these rules provide for FMLA leave to be taken in blocks of time when intermittent leave is needed or the leave is required near the end of a school term.
Salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FSLA) criteria for exemption from minimum wage and overtime under Regulations, 29 CFR Part 541, do not lose their FLSA-exempt status by using any unpaid FMLA leave. This special exception to the "salary basis" requirements for FLSA's exemption extends only to "eligible" employees use of leave required by FMLA.
The FMLA does not affect any other federal or state law, which prohibits discrimination, nor supersede any state or local law, which provides greater family or medical leave protection. Nor does it affect an employer's obligation to provide greater leave rights under a collective bargaining agreement or employment benefit plan. The FMLA also encourages employers to provide more generous leave rights.

1812. Further Information

The final rule implementing FMLA is contained in the January 6, 1995, Federal Register, (An interim final rule was published in the Federal Register on June 4, 1993.) for more information, please contact the nearest office of the Wage and Hour Division, listed in most telephone directories under U.S. Government, Department of Labor, Employment Standards Administration.
  Updated: 4/23/2014
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