Since 1993, the Family and Medical Leave Act has provided eligible employees up to 12 weeks of unpaid, job-protected leave per year for the birth, adoption or foster care of a child; caring for a child, spouse or parent with a serious health condition; or convalescence after an employee’s own serious health condition.
For most of its history, complying with the FMLA has been complex, but at least the law stayed the same. In 2009, that all changed when the first major overhaul of the FMLA took effect. The DOL’s revised FMLA regulations contained several key changes in administering leave.
Among the most important were new provisions that granted FMLA leave to employees with family members serving in the military. (See “Military Family Leave.”)
Compliance regulations
The FMLA affects about 50 million workers in the private sector and 300,000 U.S. businesses, according to the Bureau of Labor Statistics.
Any company with 50 or more employees working within a 75-mile radius of the “work site” and “engaged in commerce” must comply with the FMLA. The courts have interpreted the term “engaged in commerce” so loosely that virtually all types of businesses meet the definition.
The regulations specifically bar employers from shifting employees from one work site to another to evade the employee limit. The 50 or more workers must be employed “for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar year.”
If another corporation owns your business, how would you determine the total number of employees for compliance purposes?
The companies would be considered separate entities unless you met the “integrated employer” test. Four criteria are used to determine if two or more companies are an integrated employer: “common management, interrelation between operations, centralized control of labor relations and degree of common ownership/financial control,” according to Section 825.104c (2) of the FMLA regulations. If you meet those tests, the employees of all the companies would be counted in determining whether you are covered by the law.
If you’re uncertain of your organization’s status, call the Wage and Hour Division, U.S. Labor Department, at (866) 487-9243.
Employee eligibility
To be eligible for leave, an employee must have worked for the same employer for at least 12 months and clocked at least 1,250 hours of service (slightly more than 24 hours per week) during the 12 months leading up to FMLA leave.
On-call time counts toward the 1,250 hours, but paid time off, such as vacation or sick time, does not. Note: In 2008, the DOL determined that time spent in “light duty” work does not count against an employee’s FMLA leave entitlement.
Employees at a newly acquired company are eligible from the first day of work if they had one year’s seniority with the previous company. If you as the employer challenge an employee’s time-worked claim, the burden of proof is on you.
Leave time
Eligible employees can take up to 12 weeks of unpaid leave during a 12-month period. Under DOL regulations, you must set a fixed 12-month period for all employees based on one of the following measuring-year methods:
- A calendar year.
- A “leave year,” such as your fiscal year.
- A year mandated by state law.
- A year starting on the anniversary of the employee’s date of employment.
- A rolling period, starting on the date the employee first took FMLA leave.
The last scenario, a rolling period, would prevent an employee from taking 24 weeks of leave at once: that is, 12 weeks at the end of one year followed by 12 weeks at the beginning of the next year. Be careful in selecting your tracking system. You don’t want to give employees a chance to elect the most advantageous measuring method when they take their leave. Plus, if you fail to designate a measuring-year method, an employee must be given the most generous leave period available among all the options.
Who is considered family?
Specific guidelines define the qualifications for FMLA protection. Employees, both men and women, may take leave for the birth or adoption of a child or to provide foster care. Employees also can request FMLA leave to provide needed care to a sick spouse, parent or child. (For the definition of “son or daughter” under the FMLA, see box below.) In states that recognize common-law and gay marriages, couples are considered spouses under the FMLA.
The federal law doesn’t cover care provided to unmarried domestic partners, nor to siblings, aunts, uncles, cousins, grandparents or in-laws. Once children become 18, they don’t qualify unless a mental or physical disability makes them incapable of self-care.
According to the final regulations, you as the employer are required to designate the leave requested by an employee as FMLA leave and to notify the worker in writing that the leave qualifies as such.
In only two instances would you be allowed to designate FMLA leave after the employee took the time off: (1) if you did not know why an employee had been on leave, as long as you designate the leave within two days of the worker’s return to work, or (2) if you had already provisionally designated the leave as FMLA leave but were waiting for the medical certification.
Health care providers
The DOL rules stress that the status of a health care provider isn’t limited to physicians. A provider is defined as a doctor of medicine or osteopathy authorized to practice medicine or surgery in a specific state or states or any other person whom the Secretary of Labor deems capable of providing health care services.
Here’s a partial list of those considered providers:
- Physicians
- Podiatrists
- Optometrists
- Nurses
- Dentists
- Clinical psychologists
- Chiropractors
- Clinical social workers
- Christian Science practitioners
- Health care providers recognized by the employer or the benefits manager of the employer’s group health plan
Caregiver discrimination
In 2007, the EEOC issued guidelines for employers, employees and its investigators outlining new protections for working parents and other family caregivers.
Titled “Unlawful Disparate Treatment of Workers With Caregiving Responsibilities,” the guidelines are not law and don’t establish caregivers as a protected class under the ADA. They are merely the EEOC’s attempt to help employers avoid violating Title VII or the ADA when dealing with employees who have caregiver responsibilities for family members.
The guidelines address a wide range of circumstances, including: sex-based stereotyping and subjective decision-making regarding working mothers; assumptions about pregnant workers; discrimination against working fathers and women of color; stereotyping based on association with an individual with a disability; and hostile work environments affecting caregivers.
You can read the guidelines online at www.eeoc.gov/policy/docs/caregiving.html.
FMLA Now Covers Care by Same-Sex Parents
In 2010, the DOL issued a broad interpretation of the definition of “son or daughter” under the FMLA. It clarified that any employee who assumes the role of caring for a child will receive parental rights under the FMLA, regardless of the biological relationship.
For example, an employee who cares for a domestic partner’s child—or whose partner gives birth or adopts a child—is now eligible to take FMLA leave to care for the child.
The DOL made clear that "employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave."
The new rule applies regardless of sexual orientation or conventional family ties. That means it also covers FMLA leave for extended family members. For example, an uncle who is caring for his sick niece while the child’s single parent is called into military duty is eligible.
For more information, read the DOL's news release.
