THE FAMILY AND MEDICAL LEAVE ACT OF 1993
The Family and Medical Leave Act of 1993 (FMLA) was enacted on
February 5, 1993.
The new law is effective on August 5, 1993, for most employers. If a
collective bargaining agreement (CBA) is in effect on that date, the
Act becomes effective on the expiration date of the CBA or February
5, 1994, whichever is earlier.
The U.S. Department of Labor's Employ-ment Standards Administration,
Wage and Hour Division, administers and enforces FMLA for all
private, state and local government employees, and some federal
FMLA entitles eligible employees to take up to 12 weeks of unpaid,
job-protected leave each year for specified family and medical
reasons. An eligible employee's right to FMLA leave begins on August
5, 1993; any leave taken before that date does not count as FMLA
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 leave;
notice and certification of the need for FMLA leave; and, protections
for employees who request or take FMLA leave. The law also requires
employers to keep certain records.
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.
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 at least 12 months;
(3) have worked at least 1,250 hours over the previous 12 months;
(4) work at a location where at least 50 employees are employed by
the employer within 75 miles.
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 and the Congress.
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 or placement of a child 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 f 12 workweeks of family leave for the birth or placement of a child for adoption or foster care, and to care for a parent (but not a parent-
in-law) who has a serious health condition.
Leave for birth or placement for adoption or foster care must
conclude within 12 months of the birth or placement.
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 for birth or placement for adoption or foster
care, use of intermittent leave is subject to the employer's
* FMLA leave may be taken intermittently whenever medically necessary
to care for a seriously ill family member, or because the employee is
seriously ill and unable to work.
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 from the employee. In no case can use of paid
leave be credited as FMLA leave after the leave has ended.
"Serious health condition" means an illness, injury, impairment, or
physical or mental condition that involves:
* any period of incapacity or treatment connected with inpatient care
(i.e., an overnight stay) in a hospital, hospice, or residential
* any period of incapacity requiring absence of more than three
calendar days from work, school, or other regular daily activities
that also involves continuing treatment by (or under the supervision
of) a health care provider; or
* continuing treatment by (or under the supervision of) a health care
provider for a chronic or long-term health condition that is
incurable or so serious that, if not treated, would likely result in
a period of incapacity of more than three calendar days, and for
"Health care provider" means:
* doctors of medicine or osteopathy authorized to practice medicine
or surgery by the state in which the doctor practices; or
* podiatrists, 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 and nurse-midwives authorized to practice, and
performing within the scope of their practice, as defined under state
* Christian Science practitioners listed with the First Church of
Christ, Scientist in Boston, Massachusetts.
MAINTENANCE OF HEALTH BENEFITS
A covered employer is required to maintain group health insurance
coverage for an 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 re-cover premiums it paid to
maintain health coverage for an employee who fails to return to work
from FMLA leave.
Upon return from FMLA leave, an em-ployee must be restored to his or
her original job, or to an equivalent job with equivalent pay,
benefits, and other employment terms and conditions.
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.
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 the end of the leave period if the employee then requests
A "key" employee is a salaried "eligible" employee who is among the
highest paid ten percent of employees within 75 miles of the work
NOTICE AND CERTIFICATION
Employees seeking to use FMLA leave may be required to provide:
* 30-day advance notice of the need to take FMLA leave when the need
* medical certifications supporting the need for leave due to a
serious health condition affecting the employee or an immediate
* second or third medical opinions and periodic recertifications (at
the employer's expense); and
* periodic reports during FMLA leave regarding the employee's status
and intent to return to work.
When 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 ap-proved 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 information
when an employee gives notice of FMLA leave 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.
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 to FMLA.
FMLA is enforced, including investigation of complaints, by the U.S.
Labor Department's Employment Standards Administration, Wage and Hour
Division. If violations cannot be satisfactorily resolved, the
Department may bring action in court to compel compliance. An
eligible employee may also bring a private civil action against an
employer for violations.
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 (FLSA)
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.
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.
This is one of a series of fact sheets highlighting U.S. Department
of Labor Programs. It is intended as a general description only and
does not carry the force of legal opinion.
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