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Family Medical Leave

From lawbrain.com

Federal, state, and local laws that authorize employees to take paid or unpaid leave for a defined period of time for major health-related medical issues affecting their immediate family.

Beginning in the 1990s, federal and state family medical leave laws were passed, allowing employees to take unpaid leaves of absence from work for major, family-related medical issues without first obtaining permission from their employers. Business managers worried that family medical leave would make personnel management very difficult and ultimately drive costs up. However, by 2002, studies had shown that the federal medical leave program had not unduly hurt U.S. businesses. California began the next stage in 2002, when it enacted a law that will provide employees with paid leaves of absence.

Some state and local governments enacted family medical leave laws in the 1980s, but advocates of this policy argued that a federal law was needed. Congress passed a family medical leave law twice in the early 1990s, but both times President George H. W. Bush vetoed the legislation. In February 1993, President Bill Clinton signed into law the Family and Medical Leave Act of 1993 (FMLA), (29 U.S.C.A. § 2601 et seq.). The act permits employees to take up to 12 weeks of unpaid leave each year for family illness, childbirth, or adoption. It mandates that employers maintain the employees' insurance benefits and give them their jobs back when they return.

The drive for a federal statute was caused in part by changes in the workforce. Young mothers and single parents joined the workforce and needed options that generally were not required by the traditional male breadwinner. These new employees struggled to keep their jobs when they needed to remain at home during the workday when their children became sick. Employees who missed too much work because their children had serious medical problems often lost their jobs. The federal law sought to provide more security to employees who found themselves in this predicament.

The FMLA, which took effect in August 1993, applies to all businesses and government agencies that have 50 or more employees. Employees become eligible for leave after one year of employment at the business and after working at least 1,250 hours in the previous 12 months. Employees are entitled to take up to 12 workweeks during a 12-month period. The leave can be continuous and can be exhausted after 12 straight weeks, or the employee may take intermittent leave. Intermittent leave is typically taken when the employee or a family member is fighting a serious illness during a chemotherapy or other treatment cycle. In addition, intermittent leave can take the form of a reduced work schedule.

The FMLA limits the scope of the act to an individual, immediate family, and parents. It also describes the types of life situations that merit mandatory leave. These situations include childbirth, adoption, or the placement of a child with a parent for foster care. Fathers, as well as mothers, are permitted to exercise their leave rights for these situations. Leave also can be taken in order to care for a seriously ill spouse, child, or parent. However, if both spouses work for the same employer, they are jointly entitled to a combined total of 12 weeks of leave for the above situations. In addition, an employee is authorized to take leave to fight a serious health problem.

Employees or employers may choose to use accrued paid leave (sick or vacation leave) to cover some or all of the FMLA leave. The employer must designate whether an employee's use of paid leave counts as FMLA leave, based on information from the employee. Employers also have the right to request health certification before granting leave. Disputes over eligibility can be pursued through second and third medical opinions at the employer's expense, with a third opinion considered binding.

Employers must pay their contributions to employees' health care insurance. If employees also contribute to the insurance plan, they must make these payments while on leave. Employers have recourse if employees do not return to their jobs following a medical leave. Employers can demand repayment of health care premiums that they had paid during the leave period.

Job security is generally guaranteed under the FMLA, but not in all cases. If a company lays workers off, it also may eliminate the position of the person who is on leave. In such instances, the employer has the burden of proving that the employee would not otherwise have been employed at the time the reinstatement was sought. Another provision of the FMLA concerns key employees, who are defined at the highest-paid 10 percent of a company's workforce. Key employees are not guaranteed reinstatement and must be informed of this fact when they apply for leave. Employers may deny reinstatement to key employees if granting leave would cause substantial and serious economic injury to the company.

Although businesses feared added costs and great disruptions from the FMLA, Labor Department statistics have shown that the statute has not been costly or disruptive, with less than four percent of the workforce annually taking family medical leave. Many analysts believe that the reason why more workers do not take advantage of the law is that it provides unpaid leave, and many workers simply cannot afford to take advantage of the law. Some also speculate that psychological pressures keep employees from applying for leave, and that they believe that their supervisors will view them as less-serious workers.

In 2002, California became the first state to tackle the question of paid family medical leave by mandating up to six weeks of paid family and medical leave. Beginning in 2004, the Family Temporary Disability Pay Law will require employees to contribute a small amount from each paycheck to fund a medical leave program. The annual deduction ranges from $11.24, for minimum wage earners, to a maximum of $70, for those persons earning $72,000 or more. Persons who take leave will receive 55 percent of their pay, up to a maximum of $728 per week.

Further Readings

Department of Labor website information on FMLA. Available online at <http://www.dol.gov> (accessed November 12,2003).

Stafford, Diane. "California Family Leave Law Goes Too Far." 2002. Kansas City Star (October 17).




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