Family and Medical Leave Act: A Brief Overview
The Family and Medical Leave Act of 1993 requires that private employers with at least 50 employees, all public and private elementary and secondary schools and all public employees be allowed to take up to twelve weeks of unpaid sick leave to take care of:
- The birth and care of a child of the employee[1];
- The placement of a child with the employee for adoption or foster care;
- The care of a spouse, child or parent of the employee who has a serious health condition;
- A serious health condition of the employee that makes the employee unable to perform the essential functions of her or his position;[2]
- For a "qualifying exigency[3]" related to the active duty status of the employee's spouse, son, daughter, or parent; or
- Up to 26 weeks to care for a child, parent, spouse or "next of kin" that is injured while on active duty.
To be eligible for FMLA benefits, an employee must:
- Work for a covered employer 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;
- Have worked for the employer for a total of 12 months; and
- Have worked at least 1,250 hours over the previous 12 months.[4]
The employer is responsible for designating if an employee's use of paid leave counts as FMLA leave, based on information from the employee.
This law is only a baseline requirement for medical leave, and individual employers are free to expand upon benefits and protections, including extending coverage to domestic partners.
Intermittent Leave
Employees are entitled to use the leave intermittently under some circumstances such as when it is medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work. With employer permission, FMLA may be used intermittently for the birth and care of a child or placement for adoption or foster care of a child. Under FMLA, intermittent leave means taking leave in blocks of time, or by reducing the employee's normal weekly or daily work schedule.
Serious Health Conditions
According to the Department of Labor, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves either:
"Any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such in-patient 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:
- 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
- Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or
- 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 health care provider is not necessary for each absence; or
- 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
- Any absences to receive multiple treatments for 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 treatments for cancer)."[5]
States Can Expand Family and Medical Leave Laws
State laws can raise the floor of medical leave requirements – for example, California enacted the California Family Rights Act (CFRA) in 2005, which requires employers doing business in California with more than 50 workers in any state to give California employees 12 weeks of unpaid leave to care for a seriously ill domestic partner. Under this law, registered domestic partners are entitled to the same benefits as spouses.
We provide a summary of the California Family Rights Act as an example.
California. On January 1, 2005, California enacted the California Family Rights Act (CFRA) which requires employers doing business in California with more than 50 workers in any state to give California employees 12 weeks of unpaid leave to care for a seriously ill domestic partner. Under this law, registered domestic partners are entitled to the same benefits as spouses. Current California law limits registered domestic partnerships to same-sex couples or opposite sex couples over the age of 62.
Nowhere are the shortcomings of the federal FMLA more apparent than when it intersects with more expansive state laws. FMLA regulations mandate that FMLA benefits run concurrently with any state FMLA-type benefits that an employee is entitled to claim. If an employee first claims benefits under a state FMLA-type law for a relationship not recognized under the federal FMLA, such as a domestic partner, the federal FMLA does not apply and is not "triggered." Because of this, employers may occasionally find themselves required to give both state and federal FMLA benefits to certain employees.
For example, if an employee first takes state FMLA-type leave to care for a sick partner, the employee may then later take federal FMLA leave to care for a sick parent. Since an employee's rights under the federal FMLA may not be waived, they are entitled to take both the state FMLA-type leave and the federal FMLA leave. However, if an employee first takes all allowable FMLA leave to care for a sick parent, the employee is not later entitled to take FMLA leave to care for a sick child as both relationships are covered under the FMLA.
[1] Son or daughter means a biological, adopted, or foster child, a stepchild, 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.'' Persons who are ``in loco parentis'' include those with day-to- day responsibilities to care for and financially support a child or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary. 29 CFR 825.113 §(c) & (c)(3) (1995). Department of Labor guidance issued in June 2010 makes clear that the "in loco parentis" provision encompasses children of same-sex couples, even when the employee seeking leave does not have a legal or biological relationship to the child. http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm
[2] The Family Medical Leave Act, 29 U.S.C. § 2612 (1993).
[3] 29 U.S.C. § 2612 (2008).
[4] 29 U.S.C. § 2611, construed in Which Employees Are "Eligible" to Take Leave Under FMLA?, 29 CFR 825.110 (1995).
[5] Department of Labor website, fact sheet #28: The Family Medical Leave Act of 1993, http://www.dol.gov/whd/regs/compliance/whdfs28a.htm (last visited June 30, 2011).
