Family Medical Leave ActJohn Giacomantonio, Rising Third-Year Law Student at Indiana University Maurer School of Law and Summer Legal Intern at the Indiana State Library

This presentation is for legal information NOT legal advice.

A Word of Caution• I am a law student intern, not a lawyer.• That said, this presentation is to provide you

with information NOT legal advice.• If you have questions about how the law

applies to your specific factual situation, discuss this with your lawyer.

• I will be happy to clarify points that I make in the presentation, but I cannot answer questions about facts specific to your library.

What will be covered?

•Background▫Brief discussion of the Act’s history

•FMLA Basics▫Overview of the general definitions and

policies▫Survey of recent changes to the Act

•Resources▫Avenues for further research

FMLA - Background•The Road to Passage

Passage

•The Family Medical Leave Act became the law in 1993.▫Its road to passage began well before that.

Good things come to those who wait!

Passage, cont’d . . .

•The Act has been amended several times since it was first passed, but . . . ▫The goals have basically remained the

same. Assisting employees in their quest for work-

life balance while minimizing the costs of leave for the employer.

Images from Microsoft Clip Art on Office Online

Basics•Structure and Organization

•Policy

•Leave Provisions

Organization•3 Subchapters:

▫Subchapter 1 – General Requirements for Leave Explains the conditions under which leave is

granted. This will be the meat of today’s presentation

▫Subchapter 2 – Commission on Leave Provides for the establishment of a commission to

study leave policies.▫Subchapter 3 – Miscellaneous Provisions

Discusses provisions relating to other laws and issuing regulations.

Policies

•Providing job-security•Promoting work-life balance

▫Allows employees to care for their own health and that of a family member.

•Acknowledging the reality of single-parent households and the challenges that presents.

•Emphasizing equal treatment in the workforce for men and women.

29 U.S.C. 2612

•Explains who is entitled to leave and how much leave is available.▫“Eligible employee” [defined at 29 U.S.C. 2611(2)]

Must have been employed for 12 months by the employer and have worked for at least 1,250 hours in the previous 12 month period.

▫12 weeks of leave Total, during any 12 month period

29 U.S.C. 2612, cont’d•An eligible employee can take leave for any

one of the following:1. Birth of an employee’s son or daughter in order to take care of a

son or daughter.2. Placement of a son or daughter with the employee for adoption

or foster care.3. To care for a spouse, or a son, daughter, or parent, of the

employee, if such spouse, son, daughter, or parent has a serious health condition.

4. An employee’s serious health condition that renders the employee unable to perform the functions of the position.

5. A qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.

•Applies to all public agencies (regardless of size!)▫The employee desiring to take leave must

still be eligible to take leave before the public agency has to provide it to that individual. Just because the FMLA applies to all public

agencies does not mean that that the employee can take FMLA leave – he or she still has to be an eligible employee.

Covered Employers

Employee Eligibility

•Employer has to employ 50 employees at the worksite within 75 miles.

•Employee has to have worked for 12 months (although it can be nonconsecutive) and for 1,250 hours within that period.

Employer Notice – 29 U.S.C. 2619•All covered employers must post a notice

that provides an explanation of the provisions of the FMLA.▫The notice should be posted in a place where

employees can see it.▫An employer can be fined up to $100 for

failing to post this notice. 29 U.S.C. 2619(b) A model notice is available on the Department of

Labor’s website: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf

Servicemember Family Leave

•29 U.S.C. 2612(a)(3) ▫An eligible employee, who is a spouse, son,

daughter, parent or next of kin, of a covered servicemember can take up to 26 workweeks of leave during a 12 month period. This leave is available during a single 12

month period.

Reduced or Intermittent Leave

•Alternative schedules are available▫Not available if the employee is taking

leave for the birth of a child or placement for adoption unless, the employer and employee agree otherwise.

See also, 29 U.S.C. 2612(b)(1)-(2); 29 C.F.R. 825.120(b).

Reduced Leave, cont’d . . .

•Leave may be taken intermittently or on a reduced schedule if the leave is to care for a servicemember, to attend to one’s own serious health condition, or to care for a family member when medically necessary.

Reduced Leave, cont’d . . .

•“Medically Necessary” ▫Not defined in the Act or the regulations.

•At the least it means leave for planned medical treatment and/or unanticipated medical treatment.▫See 29 U.S.C. 2612(b)(1)-(2); 29 C.F.R.

825.202(b).

Prohibited Acts•Employers cannot interfere with an

employee’s right to exercise or attempt to exercise rights provided under the FMLA. ▫29 U.S.C. 2615(a)(1).

•Employers cannot discharge an individual for opposing practices made illegal by the FMLA. ▫29 U.S.C. 2615(2).

Employers cannot discriminate against an employee for exercising (or attempting to exercise) his or her FMLA rights.

Prohibited Acts, cont’d . . .

•Employer cannot discriminate against an individual for filing a charge under the FMLA, providing information related to a proceeding or inquiry under the FMLA, or testifying (or about to testify)in an inquiry or proceeding about a right provided by the FMLA. ▫29 U.S.C. 2615(b)(1)-(3).

The Nuts and BoltsDetails, details, details!

Substitution of Paid Leave

•29 U.S.C. 2612(2)(A)▫Allows for substitution of “accrued paid

vacation leave, personal leave, or family leave . . . for leave provided under subparagraph (A), (B), (C), (D), and (E) of subsection (a)(1). . . .” In English: leave is available for a birth,

adoption, serious health condition of the employee, to care for a family member, or for a covered servicemember’s qualifying exigency.

Substitution of Paid Leave 29 U.S.C. 2612(2)(B) If leave is for the employee’s own serious

health condition, to care for a family, or to care for a servicemember, then using accrued paid vacation leave, personal leave, or medical or sick leave for that 12 month period is an option.

Certification

•29 U.S.C. 2613(a)▫Employers may require that their

employees provide a certification from a health care provider as part of the process of requesting leave.

Certification, cont’d . . .

•Certification should include:▫ Date▫ Probable Duration▫ Appropriate medical facts (made by healthcare provider)▫ Statement that the employee is needed to care for a family member

and statement that the employee is unable to perform the functions of the job. [If leave taken is under 2612(a)(1)(C)]

▫ For intermittent or reduced leave, the dates of planned medical treatment and its duration.

▫ For intermittent or reduced leave, statement of the medical necessity and expected duration of the leave. [If leave is taken under 2612(a)(1)(D)]

▫ For intermittent or reduced leave, the schedule is necessary or will assist in the family member’s recovery and the expected duration of the reduced/intermittent leave. [If leave is taken under 2612(a)(C)] 29 U.S.C. 2613(b)

Notice – Birth or Adoption

•Employees have to provide their employers with at least 30 days notice of their intent to take leave.▫If the employee is taking leave for an

expected birth or placement for adoption But . . . if the leave is for birth or placement

that “requires less than 30 days, the employee shall provide such notice as is practicable.”

Image from Microsoft Clip art on Office Online

Notice • In situations that involve an employee’s own serious

health condition, care for a family member or care for a covered servicemember

• Employee must:▫Make a “reasonable effort to schedule the treatment

so as not to disrupt unduly the operations of the employer” This is subject to the approval of the individual’s healthcare

provider.

▫Provide at least 30 days notice before the leave begins. If the leave will begin in less than 30 days the employee shall

provide “as much notice as is practicable.”

Employment & Benefits Protection•29 U.S.C. 2614(a)(1) – An employee who

takes leave shall be:A. Restored to the prior position, orB. Restored to an equivalent position

1. Including pay, benefits, and other terms & conditions of employment

Benefits Protection, cont’d . . .

•But . . . time spent on leave does not entitle the employee to the accrual or employment benefits during leave, or a right, benefit, or position of employment other than something the employee could have had if he or she did not take leave.

“Highly Compensated Employees”•29 U.S.C. 2614(b)(1)•Employers may deny job restoration if:

▫Denial is necessary to prevent “substantial and grievous economic injury to the employer’s operations”

▫Employer gives the employee notice▫If leave has commenced, the employee elects

not to return after receiving notice. All of these conditions must be met and this is limited to “a

salaried eligible employee who is among the highest paid 10 percent employed by the employer within 75 miles of the a which the employee is employed.” 29 U.S.C. 2615(b)(2)

Maintenance of Health Benefits

•29 U.S.C. 2614(c)(1)-(2). •Employers have to maintain the health

benefits provided through a group health insurance plan.

Image from Microsoft Clip Art on Office Online

Maintenance of Health Benefits

•29 U.S.C. 2614(c)(2)•If an employee does not return to work

when the FMLA leave period expires, the employer may require the employee to pay the premium incurred by the employer to maintain the employee’s coverage.

29 U.S.C. 2616 •Secretary of Labor has investigative authority.•Employers have to “make, keep, and preserve

records pertaining to compliance . . . .”▫Covers the law and the regulations.▫See 29 C.F.R. 825.500 for what must preserved.

•Submissions of records limited to once annually unless the Secretary has “reasonable cause” to think otherwise.

•Secretary has subpoena authority.

29 U.S.C. 2617 - Enforcement

•Employers who commit a prohibited act are liable to the eligible employee for damages + interest▫Lost or denied wages, salary, employment

benefits or other compensation, or▫Actual monetary losses occurring “as a

direct result of the violation.’▫Equitable relief (employment,

reinstatement, promotion)

29 U.S.C. 2617, cont’d . . . .

•There is a “good faith” exception for an employer who had “reasonable grounds” for believing that the “act or omission” was not a violation. ▫The Court has to discretion to reduce the

amount of damages, if the employer “proves to the satisfaction of the court that the act or omission . . . was in good faith.” 29 U.S.C. 2617(1)(A)(iii)

29 U.S.C. 2617, cont’d . . .

•Employers can be subject to actions in state or federal court by “any one or more employees for or in behalf of the employees or the employees similarly situated.” 29 U.S.C. 2617(2)(A)-(B).

•The Secretary can also sue and this can terminate the right of action by or on behalf of an employee.▫See 29 U.S.C. 2617(a)(4) for the specifics.

29 U.S.C. 2617, cont’d

•Other Limitations▫An action may be brought “not later than 2

years after the . . . alleged violation.” 29 U.S.C. 2617(c)(1).

▫Willful violations: “may be brought within 3 years of the . . . alleged violation.” Id. at 2617(c)(2)

▫An action by the Secretary is commenced when filed. Id. at 2617(c)(3)

State Law

I.C. 22-2-13-0.3, et seq. • Indiana also provides for military family leave.

▫The law allows for 10 days of unpaid leave to a “spouse, parent, grandparent, child, or sibling of a person who is ordered to active duty” (I.C. 22-2-13-11). Employer has to employ 50 employees during at

least 20 calendar work-weeks to be covered. Employee still has to have been employed by the

employer for 12 months. Employee has to have worked at least 1,500 hours

in the 12 months before the day the leave begins,

Recap

Bringing it all together•We discussed the background of the FMLA.

•We discussed the policies and organization of the FMLA.

•We discussed the Act’s terminology and its mechanics including penalties and enforcement.

•Finally, we saw an Indiana statute that grants leave to members of military families.

Resources

Other Sources• http://www.gpo.gov/fdsys/pkg/USCODE-2011-titl

e29/pdf/USCODE-2011-title29-chap28.pdf▫ Text of the FMLA

• http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=d178a2522c85f1f401ed3f3740984fed&rgn=div5&view=text&node=29:3.1.1.3.54&idno=29#29:3.1.1.3.54.1.489.6▫ Code of Federal Regulations

• http://www.dol.gov/whd/fmla/▫ Department of Labor’s webpage – provides resources with

more information about the FMLA. The fact sheets available on this website are particularly helpful.

Contact Information•jgiacomantonio@library.IN.gov

• Thank you all for attending!

• Today is my last day at ISL.

• Remember, this presentation is for informational purposes it is NOT legal advice.