This year marks the twenty-first anniversary of the enactment of the Family and Medical Leave Act of 1993 (FMLA).  In the last two decades, the FMLA has matured making it easier for managers and employees to understand its application to the workplace.  This edition of Compliance@Work reviews the FMLA and answers some common FMLA issues.

So, what is the FMLA?

In short, the FMLA allows up to 12 weeks of unpaid, job-protected leave for workers in order to recover from a serious medical condition, care for a seriously ill family member, and care for a new child.  Additionally, recent amendments to the FMLA, include the right to take leave for certain qualifying reasons arising out the military service of an employee’s spouse, son, daughter or parent, or to care for seriously injured family service members.

While the FMLA does not provide paid leave (if allowed by their employers, employees may utilize paid leave as part of FMLA) it does allow employees to take leave without fear of being terminated.  Although employees who take FMLA leave may not always get the exact same job back, they still must receive the same type of appointment, work schedule, status, tenure and benefits.

 Who is Eligible for FMLA Leave?

Under the Congressional Accountability Act (CAA), all Legislative Branch employees who have worked for their employing office for 12months (need not be continuous) and worked 1,250 hours in the preceding 12months are eligible for leave under the FMLA.  P.L. 104-1, Sec. 202.

What Can the FMLA Be Used For?

  • The birth or adoption of a child and to care for that child within one year of birth or adoption;
  • To care for a spouse*, child, or parent who has a serious health condition, including 26 weeks to care for a spouse, child or parent who is a service member with a serious injury or illness;
  • A serious health condition that makes the employee unable to perform the essential functions of their job; or
  • Any qualifying exigency arising out of a family member’s active duty military service, such as making family and child care arrangements for deploying military.

*On June 26, 2013, the U.S. Supreme Court struck down the definition of “spouse” in the Defense of Marriage Act (DOMA) as unconstitutional(“Spouse” had referred only to a person of the opposite sex who is a husband or a wife).  Now, under the FMLA, employers must provide leave to care for a same-sex spouse ifthe employee was married in a state that legally recognizes same-sex marriage.

What Can Supervisors Request in Support of an FMLA Request?

Employers can request and require that employees provide certain information about themselves or about their family member with a qualifying serious medical condition.  This information may include reports from a health care provider about the condition’s duration, symptoms, level of care required, diagnosis, medication and prognosis. 

Employee Note: While this may seem invasive to employees, employers need enough information to make an informed decision on the application of the FMLA to a particular circumstance.  Employees should also remember that they are required in most cases to work with their management in scheduling leave under FMLA to have the least disruption on their agency or office’s operations.

Examples and Common Problems in FMLA Determinations:

Intermittent Leave- John is the father of a two-year old girl who has a serious health condition requiring weekly medical treatments.  John asks his boss for four hours off every Wednesday under FMLA to take his daughter to those treatments.  Can John split his FMLA up into these four-hour blocks?

Answer:  Yes. Generally, intermittent leave or reduced schedule leave can be provided when medically necessary for the employee’s own serious health condition or for the caretaking of certain family members with such a condition.  FMLA authorizes this intermittent leave but requires notice and certification of leave, and requires employees (where possible) to schedule planned treatments in a manner that does not unduly disrupt employer’s operations.

Returning from FMLA- Mary, a Legislative Branch employee, recently took three months of pregnancy leave under FMLA.  Prior to her leave, she was working on several important projects and was the “go-to” person on multiple issues.  While Mary was out, her duties were assumed by another staffer.  When Mary returns, her boss places her in a significantly lower-level role with little responsibility but keeps her salary the same.  Has management violated FMLA in the reassignment?

Answer:  Yes.  The FMLA requires that employees receive the same type of appointment, pay, work schedule, status, tenure and benefits when they return to work.  The law understands that employers need to complete important work while employeesare away, and it does not require that Mary be placed in the identical position that she held prior to her FMLA leave.  However, receiving the same pay is not the only consideration of whether Mary’s returning position is equivalent.

Military Deployments- Shira’s husband is deployed oversees with the Army for a year.  Prior to the deployment, her husband would pick up the couple’s two children from preschool.  While Shira has successfully juggled the child care issues, during a recent snow storm preschool was closed for several days and Shira was forced to stay home.  Is this a FMLA covered issue?

Answer:  Yes.  FMLA now provides coverage in certain limited military deployment circumstances.  An eligible employee caring for a covered military member’s child may use qualifying exigency leave to provide childcare on an urgent, immediate need basis, but not on a routine everyday basis, where the need to provide the care arises from the active duty or call to active duty status of the military member.