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The Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) is a federal law which became effective August 5, 1993. It provides certain employees with up to 12 workweeks of unpaid, job-protected leave a year and requires group health benefits be maintained during the leave. New military family leave entitlements (qualfying exigency leave -- 12 weeks, and military caregiver leave -- 26 weeks) were added in 2008. The U.S. Department of Labor (DOL) has issued detailed regulations interpreting the FMLA.

Major Provisions

It allows eligible employees of covered employers to take up to 12 weeks of unpaid leave per year for the: 

  • Birth, adoption, or foster care of a child. 
  • Care of a spouse, parent or child with a serious health condition; or employee's own serious health condition.
  • "Any qualifying exigency" arising from fact that a spouse, parent or child (who is a member of the National Guard or Reserves) is on or has been called to active duty.

It allows eligible employees who are family members of covered service members to take up to 26 weeks of unpaid leave in a single 12-month period to care for a covered service member with a serious illness or injury incurred in the line of duty.

Is available to employees who: 

  • Have worked for the employer for 12 months (does not have to be consecutive); 
  • Have been employed for 1250 hours during the 12 months prior to the start of the FMLA leave; and 
  • Are employed at a location where at least 50 or more employees are working or where the number of workers within 75 miles is 50 or more.

It defines a serious health condition as an illness, injury, impairment or physical or mental condition that involves one of the following: 

  • Inpatient care; 
  • Absence of more than 3 calendar days plus treatment; 
  • Pregnancy or parental care; 
  • Chronic conditions requiring treatments; 
  • Permanent long-term conditions requiring treatment; 
  • Multiple treatments of non-chronic conditions.

Covers all public employers and private employers with 50 or more employees.

Requires the employer to maintain health benefits during FMLA leave.

Guarantees that employees can return to the same or equivalent position, with equivalent pay, benefits, and other terms and conditions of employment, following FMLA leave.

Employees may take, or employers may require employees to use accrued paid leave for all or part of their 12-week FMLA entitlement.

Gives employees the right to use accrued paid leave during FMLA leave as long as they follow the employer's leave policy when requesting it. Because FMLA absences cannot be counted under employer attendance policies, employees may want to count paid absences as FMLA leave to avoid disciplinary action.

Is enforced by the U.S. Department of Labor. If you believe your rights have been denied, you may file a complaint with any local office of the U.S. Department of Labor, Wage and Hour Division. You may also file a lawsuit. Complaints and lawsuits must be filed within two years of the violation of the law.

Strengthen FMLA Provisions

FMLA is unique in that it creates a floor for leave benefits, not a ceiling. The FMLA regulations emphasize that workers must receive the benefit of the most favorable provisions of the FMLA, any state law and the contract.

There are several areas where affiliates can bargain for FMLA improvements in their contracts. Here are a few suggestions:

  • Broaden the definition of "family member."
  • Increase the amount of leave that an employee is permitted to take under the FMLA. 
  • Choose the most favorable method for defining the FMLA leave year. 
  • Make unpaid FMLA leave paid leave. 
  • Negotiate a sick leave policy that would allow employees to use their sick leave for family members. 
  • Liberalize the rules on substituting accrued paid leave for unpaid FMLA leave. 
  • Require the employer to assist employees to pay premiums for group health coverage. 
  • Reduce the notice period for requesting FMLA leave. 
  • Relax medical certification requirements. 
  • Enforce the FMLA through the collective bargaining agreement or other legal instruments, such as a Memorandum of Understanding.

Publication:

The Family and Medical Leave Act: AFSCME's Comprehensive Guide for You, Your Family and Your Union