The Family and Medical Leave Act (FMLA) is the federal statute that guarantees employees the right to unpaid leave in the event of certain family and medical issues.  This can be an important right for many employees, and it can also be a source of significant liability to employers.  Both employers and employees should seek guidance with respect to their rights and obligations under the FMLA.

1, Which employees are covered by the FMLA?

To be covered by the FMLA, an employee must have worked for the employer for at least one year and must have worked full time (at least 1250 hours).

2. Which employers are covered by the FMLA? 

The FMLA covers businesses with at least 50 employees within a 75 mile radius.

3. When can an employee claim a right to leave?

Originally, the FMLA applied to four situations:

  • for the birth and care of the newborn child of an employee;
  • for placement with the employee of a child for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.

In 2009, the FMLA was amended to include leave to care for an injured servicemember.

4. How much leave is required?

In general, employees are entitled to 12 weeks of unpaid leave, with the continuation of health benefits.  In the case of employees who are caring for injured service members, the employee is entitled to up to 26 weeks of leave in a single calendar year.

5. How much notice is required before taking leave?

As a general rule, an employee is expected to give 30 days notice using the employer's customary procedures for requesting leave.  If the need for leave is not foreseeable 30 days in advance, then the employee must give as much notice as practicable.  In some cases, no notice at all is possible.  For example, if an employee suffers a major injury on the job, the employee is not required to give advance notice that he or she will need leave time.  Such notice would be impossible.

An employee is not required to specifically mention the FMLA.  The employer is expected to recognize its obligations under the FMLA even if the employee does not mention the FMLA.

6. Can an employee take leave on an intermittant or reduced-work basis?

Yes, if it is supported by medical necessity or by another qualifying exigency.  For example, if an employee must miss one day of work per week due to ongoing medical treatments, the employee may qualify for intermittant leave.  If an employee cannot work mornings because of the need to care for an elderly parent, the employee may qualify for a reduced work schedule.

7. What rights does the employee receive while on leave?

While the employer may make reasonable requests for information concerning the employee's need for leave, the employer may not discriminate or punish the employee for taking leave.  The employee will be entitled to restoration to his or her prior position at the end of the leave period.  There are limited exceptions to this rule for certain key employees and for bona fide layoffs.

8. Can the employee use accrued paid leave while on FMLA leave?

Generally yes, as long as the paid leave is used in accordance with the employer's leave policy.

9. Can the employer require the employee to use accrued paid leave while on FMLA leave?

Yes, as long as the employer follows the rules of its leave policy.  If the employer does not do this, then the employee will retain accrued paid leave when he or she returns to work.

10. What are the penalties for non-compliance with the FMLA?

An employee can file a private lawsuit for economic damages (such as back pay) and attorneys's fees.  An employee can also recover additional liquidated damages (in essence, a penalty) in amount of up to 100% of the economic damages, unless the employer can prove that it acted in good faith and had a reasonable basis for its actions.

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This is intended as a a quick guide to the FMLA.  In fact, there are extensive regulations with respect to many of the provisions of the FMLA, and the law is constantly evolving.  Any employer or employee who encounters an issue under the FMLA should seek professional advice.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes