FAMILY AND MEDICAL LEAVE ACT of 1993

Revolutionizing the Way Families are Taking Care of Business

Carlie Staff

9/21/2014

This act was intended to “…support initiatives that both increased employment and strengthened families.” – Bill Clinton, 42nd President of the United States

HISTORYIn 1984 the Women’s Legal Defense Fund, or what is now known as the National

Partnership for Women & Families, began developing what eventually became the Family and

Medical Leave Act (FMLA). Though it took 9 years, the act was became the first law signed by

President Bill Clinton in 1993 and revolutionized the way families could both earn a living and

tend to their home-life needs. In fact, the basis of this act is to help America’s working families

sustain a proper work-life balance.

WORK LIFE BALANCEObtaining a proper work-life balance is not limited to just those employees with families.

In fact, employers would be right to desire a balance for their employees as well. In order to

achieve maximum efficiency and productivity, employees must feel that they are trusted in their

work environment and be allowed the flexibility to keep their commitments outside of work

without guilt or negative consequences. The Hay Group, a global management-consulting firm,

has a database comprised of over 5 million employees worldwide and their opinions of their

work environment. Within these opinions, they found that “...over 40% report that their

organizations do not provide sufficient work-life balance support.” (Royal, 2013) Employees

want to be able to further their career but most do not want it at the expense of their personal or

home lives.

Companies can also expect to save money, by retaining employees that take FMLA

leave. Employees who feel they are in a trusting and respectful environment are more willing to

stay loyal to a company, as well as progress up the corporate ladder. Companies will save the

time, money, and knowledge they have invested in molding the employee to what the company

needed them to be.

REQUIREMENTSNot every company or employee is covered under the FMLA unfortunately. Private employers,

with at least 50 employees, as well as government agencies on the local, state, and federal levels

are covered. These employees and employers must both meet specific requirements, which

include:

The employee must have worked for the employer a minimum of 12 months

In those 12 months, the employee must have worked a cumulative minimum of 1,250

hours

The company must employ at least 50 employees within a 75 mile radius of the worksite

(United States Department of Labor, 2014)

After an employee is deemed eligible, they are given the opportunity to take leave for specific

family and medical reasons. 12 workweeks in a 12-month period are offered to eligible

employees for events such as:

The birth and care of the newborn child within one year of birth

Placement of child for adoption or foster care with an employee

To care for an immediate family member with a serious health condition (immediate

family members include a spouse, parent, or child)

When an employee is unable to work and/or perform the essential functions of their job

because of a serious health condition

Any qualifying exigency involving the employee’s child, spouse, or parent who is a

covered military service member on active duty

(United States Department of Labor, 2014)

In 2009, there were additions to the FMLA called Military Caregiver Leave, which applies to

service members with a serious injury or illness and need constant care. 26 workweeks of leave

in a 12-month period are allowed to care for military service members as long as the employee,

who is requesting the leave, is the service member’s immediate family member.

The FMLA does not require employers to pay employees while on leave. Any pay

benefits are only offered if the employer elects to do so through short-term and long-term

disability. Short-term disability (STD) will generally cover leave that lasts between 9 and 52

weeks. Long-term disability (LTD) can be arranged if an employee needs more time after their

STD time runs out and all sick leave is used. Because LTD is used in extreme cases, most

arrangements are set to pay a portion of the employee’s wages for a specified number of years.

EMPLOYEES

When a qualifying event happens, employees should make their supervisors aware of

their situation first and then let the HR department know. Your supervisor is the one who must

work without you for an extended period; therefore, you should give them as much notice as

possibly so that they may strategize your work while you are gone. However, when it comes to

Human Resources, generally “An employee must provide her/his department and Human

Resources Benefits at least 30 days advance notice before FMLA leave is to begin if the need for

the leave is foreseeable. If 30 days notice is not practicable due to lack of knowledge as to when

leave will be required to begin, notice must be given as soon as practicable.” (Michigan State

University Board of Trustees, 2014) Employees can submit their request for leave in any way

they see fit (electronic, verbal, or written) but should try to include the expected time and length

of their leave as well as presenting it as a qualified FMLA leave (HR can confirm or deny this).

Employees then have to complete the certification forms, which involves the details of the leave,

within a certain number of days, whether before or after the event. Additional information or

documentation regarding the conditions of the leave may be required and employees should

provide this in a timely fashion. Failure to complete the certification process can result in delay,

or even denial, of FMLA benefits.

MANAGERS/SUPERVISORS

Managers and/or supervisors are technically the first stage in the request-for-leave

process. In an emergency, where the employee did not have prior knowledge of their need for

leave, the manager can and will notify the leave administrator (HR Representative) of the

employees situation. This requires managers to have general knowledge of what does and does

not qualify as FMLA leave. Situations that this may apply to are sudden deaths, sicknesses, or

other medical emergencies. Even in non-emergency situations, in which employees are aware

before hand of their need for leave, managers need to make plans accordingly to cover the

employees work in their absence.

HUMAN RESOURCE REPRESENTATIVES

The Human Resources (HR) Department takes the next steps in a request for FMLA

leave. At this point, the employee has submitted their formal request for leave, including the

approximate start date and duration, as well as all legal supporting documentation to support

their request, and let their manager know of the situation. If the employee’s request qualifies

under the FMLA, the employee should receive a written notice from the department, confirming

their request for leave, their level of eligibility, and the continuation of any benefits in which

they are enrolled.

If the employee does not qualify for FMLA leave, a written notice denying their request

and reasons why they do not qualify is to be given instead. However, it is unlawful for an

employer to interfere, deny, discharge, or discriminate against any of the rights covered by the

FMLA, so Human resource professionals need to stay up to date on the qualifying circumstances.

Examples of both types of notices, given by the University of Michigan Human

Resources team, are found below.

A confirmation letter may look like:

FMLA Notification Letter

This letter is intended solely as notice that your absence will be counted toward your 12 weeks of annual eligibility under the Family and Medical Leave Act of 1993 (FMLA). It is not intended as a statement regarding the length of your absence.

You have met the conditions for eligibility under the FMLA. Your absence is due to:

o Birth of your child, and to care for your newborn child

o Placement of a child with you for adoption or foster care, and to care for your newly adopted child or a child newly placed in your foster care

o To care for a family member with a serious health condition

o Your own serious health condition

o To address a qualifying exigency

You are eligible under the FMLA to be absent from work for the reasons listed above for up to 12 weeks in your FMLA benefit year with the continuation of health, dental and vision coverage. You must be enrolled in the benefit plan to be entitled to the continuation of the benefit coverage. Your current FMLA benefit year is DATE 1 to DATE 2.

The period of your absence beginning DATE 3 will be counted toward your 12 weeks of eligibility under the FMLA. Your 12 weeks of FMLA eligibility will end on DATE 4. If you

return to work on or before DATE 4, the balance of your FMLA eligibility will remain for your use during your current FMLA benefit year.

Upon your return to work from an FMLA qualifying absence, you will be placed in the same position you had before the absence started or an equivalent position. If you return to work after DATE 4, you will be placed according to University of Michigan policy and practice.

Information regarding the university’s FMLA policy can be accessed at ___________________________, and the U.S. Department of Labor FMLA poster can be accessed at ____________________________ .

If you have any questions regarding this matter, please contact me at PHONE NUMBER, or at EMAIL ADDRESS.

Sincerely,

Cc:

(The Board of Regents of the University of Michigan, 2009)

If the employees request is denied, the notification letter may look like this:

FMLA Ineligibility Letter

This letter is intended solely as notice that your current absence is not eligible for coverage under the Family and Medical Leave Act of 1993 (FMLA). It is not intended as a statement regarding your eligibility to be absent from the workplace.

The explanation for this determination is as follows: (Explain)

Examples:

• Employee did not meet the 12-month length of service requirement. In this case, the denial letter should also contain a statement giving the approximate number of months the employee worked.

• Employee did not meet the 1,250 hours worked requirement. In this case, the denial letter should also contain the number of hours worked.

• The FMLA does not apply to the reason for the employee’s absence.

• The employee exhausted his or her 12 or 26 week FMLA entitlement.

Information regarding the University’s FMLA policy can be accessed at ____________, and the U.S. Department of Labor FMLA poster can be accessed at _________________.

If you believe this determination was reached in error, please contact me to discuss this matter at email, phone, or at the address provided on this letter.

Sincerely,

Cc:

(The Board of Regents of the University of Michigan, 2009)

The Human Resource professional is responsible for providing all necessary information

to the requesting employee about their eligibility under FMLA law. They are then required to

keep all documentation, pertaining to the employee’s leave, for at least 3 years. This is in case

the Department of Labor requests to inspect these documents.

EMPLOYERS

Under the FMLA law, Employer’s as a whole have specific obligations and boundaries to

which they must abide by that are listed in the notification letter. First, if an employee is eligible

for FMLA leave, the employer must continue any benefits in which that employee is enrolled,

including medical and dental insurance. In addition, the employee should not lose any other

benefits they had prior to taking leave, upon their return to work.

RETURNING TO WORKThe employee is responsible for communicating with the employer if circumstances

change while on leave. For example, if more time than the allowed 12 or 26 weeks is needed,

special arrangements may need to be worked out with the employer, if they allow or if they

provide some sort of long-term disability. However, this situation could also result in

termination, as the employer has already provided the legal amount of leave in a 12-month

period.

The employee could also opt to return to work earlier than expected. Employees are then

responsible for letting the company know when he/she is returning to work. At least 2-business

days is considered the proper amount of time to notify them of your return, so that they may do

the work to start reinstatement.

The employer and HR Department have a responsibility to ensure that the employee’s

position, or one of equal pay, benefits, and terms, be available to the employee upon their return

- whether it be 12 or 26 workweeks. Some employers may require an employee to provide a

Fitness-for-Duty Certificate, given by their healthcare provider, when they are sufficiently and

safely able to perform any or all job duties. In some cases, the employee may only be cleared for

light duty until a specific date or otherwise stated.

However, some conditions may apply. In some cases, employees may only be hired for a

specified period or for the duration of a specific project. The employer is not obligated to

reinstate the employee if the term or project has ended. In other cases, the employer must show

that the employee would have lost their job for another reason, not in any way pertaining to the

FMLA leave. In some very special cases, in which the employee requesting reinstatement is

among the highest paid people at the company (usually within the top 10%) and considered a

“key” employee. Their reinstatement would cause “substantial and grievous economic injury to

its operations” (United States Department of Labor, 2014) therefore, the employer is not required

to reinstate the employee. However, the employer is required to give the employee a written

notice stating why they are denying them job restoration. Again, this is in extreme cases where

the company may be under other economical burdens, or even at risk of “going under”.

COMPLAINT PROCESS

If an employee feels as though they have been unlawfully treated under the FMLA, they

can file a complaint directly with the Wage and Hour Division (WHD) district offices either

written, by phone, or in person. To find their local WHD District Office, employees can go to the

WHD Local Offices website. Complaints are usually what triggers and investigation on a

company, however the WHD is required to keep all information about complaints completely

confidential. In fact, the company is not even allowed to know if there was complaint made

against them.

In order to file a complaint with the WHD, an employee needs the following information:

Name, address, phone number, and any other contact information

The name, location, and phone number of the company in which you are filing the

complaint

The owner, manager, or HR representative in which the WHD should speak to regarding

your case

Type of work you did (office, production, etc.)

How often you were paid and in what form you received that payment

(Report Violations of the Family and Medical Leave Act (FMLA), 2014)

Some of the most common complaints against employers, regarding the FMLA include

things like failing to notify employees of their FMLA rights as well as that their leave counts

toward the 12 or 26 week leave, taking disciplinary action against employees for taking leave,

and failure to reinstate an employee to the same or equivalent position within the company.

Any employees in need of information, regarding their request for leave, can reference

The Employee’s Guide to the Family and Medical Leave Act located on the United States

Department of Labor Website.

PIVAC V. COMPONENT SERVICES AND LOGISTICS: FMLA ABUSEBiljana Pivac was a warehouse worker at Component Services and Logistics (CSL) and enjoyed

taking time off. So much so, that she had been spoken to before about her poor attendance. Pivac

put in a request for FMLA leave to go visit her elderly parents. However, Pivac was unable to

provide any other reasoning for the leave besides that her parents were old. They did not need

extra care, nor were they necessarily on the verge of death. Therefore, Pivac’s request was

denied, but her HR Representative recommended some steps she could take to request a short-

term personal leave to manage the stress she may be under. Pivac saw a doctor who gave her a

medically-excused-absence for a 2-week period. She immediately took the next two weeks off

without submitting any FMLA paperwork to back her request. She was then fired immediately

when she returned.

Pivac attempted to sue the company for wrongful termination under the FMLA law. The

court denied her attempt and stated, “There is absolutely no evidence presented by the Plaintiff

that she met the definition of “serious medical condition” at the time she took the extended

unpaid leave. There are no medical records submitted, no indication of continuing treatment at

the time of the Plaintiff’s being out of work from the 4th to the 17th of October of 2011, no

evidence, other than the Plaintiff’s statements, that she suffered depression and anxiety as

chronic health conditions.” (Biljana Pivac v. Component Services & Logistics, 2013)

Pivac did not take the necessary steps to ensure that her leave was in fact covered under

the FMLA. In her argument she claimed that she was informed by her doctor that the note should

be enough, though she never fulfilled her responsibility of filing the paper work. This is what

ultimately led to the court ruling in favor of the defendant.

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