Employee turnover can be very costly to your business.  In addition to hiring a replacement, there are other expenses, such as training, background checks, and time invested in getting your new hire started.  In times past, employees were at risk of losing their jobs in the event of a pregnancy, medical emergency, or other extenuating circumstances that were unavoidable, thus causing the employee to find new work and the employer to hire a replacement.  Today, we have the Family and Medical Leave Act (FLMA), which serves as a solution to this dilemma.

What is the Family Medical Leave Act (FMLA)?
The Family and Medical Leave Act (FMLA) is a federal law which protects employees who encounter temporary emergencies from losing their jobs while protecting employers from unneeded turnover in these situations.  The law specifies circumstances which qualify employees for leave, and protects them from retaliation by employers for exercising the rights listed therein.

Does The FMLA require paid or unpaid leave?
The FLMA does not require that employers pay employees when they are on leave.

What circumstances qualify for leave under the FMLA?
Qualifying circumstances include:

  • Caring for a newborn child, the adoption of a child, or placing a child in foster care.
  • Care of a seriously ill family member (spouse, child, or parent).  The definition of a child under the FMLA is one under the age of 18, or one over 18 who has a mental or physical disability as defined by the Americans With Disabilities Act.  Pregnancy and post-partum recovery of a child over 18 who is not disabled does not qualify the parent for leave under the FMLA.
  • Recovery from one’s own illness.
  • Care of a family member who sustained injuries while serving under the Armed Forces.
  • To handle exigencies arising from the military deployment of a family member.

How long does an employee’s leave last under the FMLA?
The FMLA allows for up to 12 weeks per year of leave for qualifying circumstances.

What are employers obligations under the FMLA?
Under the FMLA, employers are required to provide employees who qualify with the following:

  • The same group health insurance benefits, including employer contributions, and full reinstatement of all benefits once the employee returns to work.
  • The same position the employee had when he/she went on leave, or, if that position is not available, one that is substantially equal in pay, benefits, and responsibility.
  • Employers are forbidden to retaliate against employees for exercising their rights under the FMLA, or to deny benefits to a qualifying employee.
  • Intermittent leave for employees who either have serious medical conditions, or are caring for a family member with such conditions.  Examples include doctor’s appointments for things like physical therapy, psychological counseling, and chemotherapy.  Other examples include severe morning sickness and asthma attacks.

Will my employee receive benefits while on leave?
Yes.  Employees are entitled to the same group health insurance benefits, including employer contributions, while the employee is on leave, and reinstatement of all benefits once the employee returns to work.

Are there exemptions to the FMLA?
Yes.  Some companies are exempt.  These include:

  • Businesses with fewer than 50 employees.  This threshold does not apply to public agencies and local educational agencies.
  • Part time workers who have worked fewer than 1,250 hours within 12 months prior to the leave and a paid vacation.
  • Workers who need time off to care for seriously ill pets or elderly relatives who are not their parents.
  • Short term illnesses such as common colds, or routine medical care such as check-ups.
  • Elected officials.

What is the definition of family under the FMLA?
According to the FMLA, family is defined as the immediate family (parent, spouse, and children until age 18 unless disabled under the Americans With Disabilities Act).  However, amendments to the FMLA have expanded the coverage for military families to include next of kin, and adult children.  Futhermore, the US Dept of Labor (DoL) clarified that an employee who assumes the role of caring for a child has the same rights under the FMLA as a parent, regardless of their legal and/or biological relationship to the child (a nanny is an excellent example).  Finally, the DoL also clarified that employees who intend to share in the parenting of a child with a same sex partner will be covered under the FLMA as well.

Do any states have different requirements under the FMLA?
Yes.  Some states have added provisions to be covered, or changed thresholds for coverage under the FMLA.  Check your state below to see the modifications.  If your state is not listed, no additional provisions exist.

  • California: Domestic partner and domestic partner’s child are also covered.  Coverage expanded to allow parents to attend their children’s educational and school activities.
  • Colorado:  Coverage expanded to include recovery from domestic violence, stalking, and sexual assault.
  •  Connecticut:  Civil union partners and parent-in-laws covered. Coverage expanded in include organ and bone marrow donors.
  •  District of Columbia: Persons related by blood, legal custody, and marriage are covered, along with persons living with the employee who are in a committed relationship with them, children living with the employee who is permanently responsible for assuming and exercising parental duties.   Coverage expanded to include time off for attending child’s educational and school activities.  Employers with 20 or more employees are covered.
  • Florida:  Coverage expanded to include recovery from domestic violence, stalking, or sexual assault.
  • Hawaii:  Grandparents, parents-in-law, grandparents-in-law, and employee’s reciprocal beneficiary are covered.  Coverage expanded to include recovery from domestic violence, stalking, or sexual assault.
  • Illinois: Coverage expanded to include recovery from domestic violence, stalking, or sexual assault.
  • Maine:  Domestic partners and domestic partner’s children are covered, along with siblings.  Coverage expanded to include organ donors, time off for family members in the Armed Forces who are killed while on active duty.  Employers with 15 or more employees (private employers) and 25 or more (city and town employers) are covered.
  • Massachusetts:  Coverage expanded to include routine medical visits.
  • Minnesota: Coverage expanded to include time off for attending child’s school or educational activities.  Employers with 21 or more employees are covered for parental leave only.
  • New Jersey: Civil union partners and their children, along with parents-in-law and step parents are covered.
  • Oregon: Domestic partners, grandparents, grandchildren, and parent-in-laws covered.  Coverage expanded to include care for the non-serious injury of a child who requires home care.  Employers with 25 or more employees are covered.
  • Rhode island: Domestic partners of state employees and parents-in-law are covered.  Coverage expanded to cover attendance of a child’s educational or school activities.  Employers with 50 or more employees (private employers) and employers with 30 or more employees (public employers) are covered.
  • Vermont: Civil union partners and parents-in-law are covered.  Coverage expanded to include time off for attending child’s school or educational activities, along with time off for taking family members to routine medical visits.  Employers with 10 or more employees (for parental leave only), and employers with 15 or more employees (for family and medical leave only) are covered.
  • Washington:  Employers with 50 or more employees (for all FMLA reasons besides parental leave) are covered.  All employers are required to provide insured parental leave.
  • Wisconsin: Parents-in-law are covered.

Are employees covered when their child dies?
No, although there are efforts underway to amend the FMLA to provide this coverage.  The Farley-Kluger Initiative (www.farleykluger.com) was started in 2011 to achive this goal, with support from many organizations and a bill in Congress (S.226 – The Parental Bereavement Act of 2013), which has 3 sponsors at the time of this writing (Feb 2013).  The bill is currently on Committee in the Senate and a House version of the bill does not exist at this time.