Labor Law Deep Dive: the Family and Medical Leave Act


  • The Family and Medical Leave Act is a source of confusion for employers and employees.
  • Mistakes are common but can be mitigated with careful documentation.
  • Designate an HR specialist to help you remain on the right side of the law.

In 1993, President Clinton signed the Family and Medical Leave Act into law to provide a measure of work-life balance for American employees. The FMLA applies when special circumstances, such as military deployment or health issues, faced by the employee or his or her family members require that employee’s time and attention.

As with most laws, however, there are so many details hedging around the provision both employers and employees can become frustrated and confused.

Here is an overview of the FMLA, common employer mistakes, and one example of a situations in which the act did not prevent termination.

An Overview of the Family and Medical Leave Act of 1993

The FMLA states that unpaid, job-protected leave must be provided to eligible employees of covered employers for one (or more) the following reasons:

  1. The birth of a child or placement of a child with the employee for adoption or foster care
  2. To care for a spouse, child, or parent who has a serious health condition
  3. A serious health condition that makes the employee unable to perform the essential functions of his or her job
  4. Any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

Here’s a further breakdown of a few of the terms used surrounding the FMLA:

  • Unpaid Leave – Employers must provide leave but are not required to pay employees while on leave.
  • Job Protection – Employers must provide a comparable position for the returning employee, but the requirement does not mandate it be the same job he or she had before leave.
  • Eligible Employee – One who works for a covered employer, has worked for that employer for at least 12 months as of the date before leave is to begin, has worked at least 1,250 hours for that employer in the preceding 12 months, and works at a location where the employer employs at least 50 employees within 75 miles of the work site as of the date the employee gives notice of the need for leave.
  • Covered Employer – a private-sector employer employing 50 or more employees in the United States or a territory, 20 or more workweeks in the current or previous calendar year. Part-time, seasonal, temporary, and full-time workers count.

To reiterate, you are not required to provide paid leave or give the employee the same position he or she had before leave. Once you are a covered employer, you remain so as long as you employ 50 or more employees in 20 or more workweeks during the current or previous calendar year.

Common Employer Mistakes

Again, the complexity of the FMLA has been known to create confusion for employers. Here’s some clarification:

  • If an employee takes intermittent family leave, it cannot be counted as an absence.
  • Carefully track and record FMLA leave to avoid errors and preserve the limit of leave allowed.
  • You have to provide a returning employee the same or an equivalent job or one of equivalent pay, responsibilities, and benefits—regardless of the employee’s performance before he or she went on leave. To do otherwise invites claims of retaliation.

Careful documentation of leave requests, medical certification, and leave taken ensure you stay on the right side of the law. Prominently post a notice of the Family and Medical Leave Act rights and include clear communication about FMLA rights in the employee handbook.

To remove all doubt about administering FMLA, give the responsibility to a human resources specialist.

Employee Termination and the FMLA

Employers may find themselves worrying, quite rightly, about when and how an employee may be terminated without running afoul of the FMLA. Here is an example of a situation in which the employer was within their rights to terminate an employee eligible for Family Leave:

  • A nurse at a hospital was diagnosed with cancer and asthma and is medically certified for family medical leave for those conditions.
  • The nurse is absent due to other reasons for more days than allowed by employer policy.
  • Since the nurse had more than the allowable number of absences attributed to something other than cancer or asthma, she was lawfully terminated according to a court of law.

For a successful termination, your best course of action is as follows:

  • Document every absence, don’t forget to include the precise reasons, and keep the records up-to-date and accessible.
  • Audit the absences at the time of termination to confirm none were covered by the ADA or FMLA.
  • Use progressive discipline and interaction to ensure the employee is aware of their infractions and knows how to rectify the situation, including how you can help the employee meet expectations.

The Family Medical and Leave Act provides only a fraction of U.S. employees with protected but unpaid leave. As the 25th anniversary of the law arrives, some are working to modify the law. Stay abreast of all changes and consult your human resources specialist to make sure you and your employee have been treated fairly.

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