Prior to FMLA~ 

Prior to the Family Medical Leave Act of 1993, an employer could deny family & medical leave for any rea-son and even fire an employee for taking the leave. This became more of an issue starting in the 1970’s, as more woman be-gan to work outside the home. By 1990, the work force was 47% female and 53% male. Woman routinely lost their jobs when they took four or more weeks off to have a child, which limited career prospects for woman. The result of this was some mothers returning to work too soon, endangering their health, just to protect their jobs.

The Family Medical Leave Act (FMLA) was signed into law by President Bill Clinton on February 5, 1993, just 16 days after he took office, and the law took effect on August 5, 1993. This was a major part of President Clinton’s agenda during his first term, because of the concern about how the provisions for family & medical leave were being handled by US companies. FMLA provides a means for employees to balance their work and family respon-sibilities by taking unpaid leave for cer-tain family and medical reasons. The Act’s primary intent is to promote stability and economic security for families as well as the nation’s interest in preserving the integrity of families.

On January 28, 2008, President Gorge W. Bush signed into law the National Defense Authorization Act (NDAA), which amended the original FMLA to include up to 26 weeks of leave for a spouse, child, parent or other family mem-ber to care for an injured “covered service member” of the armed forces, and up to 12 weeks of qualifying exigency leave when the employee’s spouse, child or parent who is a covered military member on active duty or call-to-duty for one or more qualifying exigencies. Qualifying exigencies include: short-notice deployment, military events and related activities, certain childcare activities, financial and legal arrangements, counseling, rest & recuperation and post deploy-ment activates. Employers and employees can also agree on any other activities that constitute qualifying exigency.

On October 28, 2009, President Barack Obama signed into law the amendments to the NDAA that also im-pacted the FMLA by expanding the military family leave provisions of 2008; these provisions stipulated that “covered active duty” for a regular component of the armed forces means duty during deployment of the member with the Armed Forces to a foreign country. It defined the members of the reserve components of the Armed Forces (US National Guard or Reserves) as duty during deploy-ment to a foreign country under a call or order to active duty in a contin-gency operation defined in section 101 (a)(13)(B) of titled 10, Unites States Code. This amendment also expanded the military caregiver leave to include a veteran in the definition of “covered servicemember,” a veteran “who is undergoing medical treatment, recuperation, or therapy for a serious in-jury or illness,” if the veteran was member of the Armed Forces “at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.” The term “serious illness” was also expanded to include any prior injury or illness that “existed before the beginning of the member’s active duty and was aggravated by service in the line of duty in the Armed Forces.”

As of February 15, 2012, the US Department of Labor announced that it will publish a Notice of Proposed Rulemaking to expand military family leave provisions and leave eligibility for airline flight crew employees.

FMLA Eligibility 

As you can see, FMLA and NDAA amendments are very extensive and can be very confusing. That is why you need a solid personal leave of absence policy and make sure you are consulting with an FMLA specialist to cre-ate and implement the program.

All public entities are eligible employers under FMLA. Private entities must meet the following requirements to be eligible FMLA employers: 1) Employ 50 or more employees in 20 or more weeks in a 12 month period; 2) The 50 employees must work within a 75 mile radius of each other. When counting your employees, you need to include all employees — full-time, part-time, temp, seasonal, active and inactive. Inactive employees could be employees who are not currently working due to seasonal work, vacation or some type of leave.

3) Work at a location where at least 59 employees are employed by the Company within 75 miles, as of the date the leave is requested. Companies are still required to post all FMLA guidelines if you have 50 or more employees even if they are not in the 75 mile radius of each other.

In any case in which a husband and wife are entitled to leave and are employed by the same employer, the combined number of workweeks of leave to which both may be entitled may be limited to 12 workweeks for bond-ing leave (caring for newborn or adoption), and family care leave (care for a parent with serious health condition) Or 26 workweeks for military caregiver leave, during any 12 month period. Couples that are not married that work for the same company and are requesting bonding leave, are entitled to 12 workweeks each. Remember all eligible employees are protected from the date the leave request, not just from the start date of leave.

Reasons for FMLA leave can be confusing and asterisks accompany most all of them. We will review the list of reasons, but keep in mind before denying any FMLA leave, consult with a FMLA specialist or attorney to ensure the reason is not one of those asterisks. FMLA leave may be used for one of the following reasons: 1) The birth, adoption, or foster care of an employee’s child within 12 months following birth or placement of the child; 2) To care for an immediate family member (spouse, child, or parent with a serious health condition); 3) An employee’s inability to work because of a serious health condition; 4) A “qualifying exigency,” as defined under the FMLA for military operations arising out of a spouse’s, child’s, or parent’s active duty or call to duty as a member of the military reserves or National Guard in support of a “contingency operation” declared by the US Secretary of Defense, President or Congress as required by law; 5) To care for a spouse, child, parent or next of kin who is an Armed Forces member (including military reserves & National Guard) undergoing medical treatment, recuperation , or therapy, due to a serious injury or ill-ness incurred in the line of duty.

A serious health condition is defined by the following: 1) Any period of incapacity due to pregnancy and prena-tal care; 2) A chronic serious health condition (such as asthma, diabetes, etc); 3) A permanent or long-term condition for which treatment may not be effective (such as Alz-heimer, strokes, terminal dis-eases, etc; 4) To receive multi-ple treatments (including re-covery from) either for re-storative surgery after an acci-dent or other injury, or for a condition that would likely result in a period of incapacity of more than three consecu-tive calendar days in the ab-sence of medical intervention or treatment (such as dialysis, chemotherapy, etc. Health Care Providers are defined as the following: 1) Doctor of medicine or osteopathy; 2) Podiatrist, dentists, psycholo-gists, optometrists, chiroprac-tors; 3) Nurse practitioners, midwives, social workers, physician assistants; 4) Christian Science Practitioners; 5) Health Care providers approved by employer’s group health plan; 6) Provider outside of the United States who is authorized to practice in accordance with the law of that country.

Final Thoughts~ 

This was only a brief history and overview of the Family Medical Leave Act. There are many facets of the Act, so be on the lookout for future Deerfield Advisors’ white papers that will review topics such as what is required of employers, what employees are re-sponsible for, definitions of terms, how the ADA (American Disability Act) can affect FMLA, and best practices for complying with FMLA. The law is ever changing, so we strongly recommend that if you are an eligible FMLA company, you ensure your company has

a firm understanding of your responsibilities when it comes to FMLA. Keep in mind that not only can your company be sued, but also your managers and HR professionals can be held person-ally liable for any FMLA vio-lations. Feel free to contact us for further informa-tion on how to.

The Deerfield Team
800.233.6428
j@deerfieldadvisors.com