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The Family Leave Medical Act Rights and Responsibilities

October 28, 2003


The Family Leave Medical Act (FLMA) of 1993 was designed to provide an avenue for certain employees to balance their professional and family lives in a means that would be minimally detrimental to their employers. As childbirth is a primary reason to utilize its benefits, FLMA evens the employment playing field for men and women by minimizing the potential for sexual discrimination. It provides qualifying employees up to 12 weeks of unpaid leave within a 12-month period, continued health benefits while on leave, and guaranteed job restoration upon return.

FLMA applies to all public agencies and all private sector businesses that employ more than 50 employees for at least 20 weeks in the current or preceding year. Employees of such companies are eligible for FLMA benefits if they have worked for the employer for at least 12 months and at least 1,250 hours during the 12 months immediately preceding the leave, and they work within 75 miles of the location of the business.

Eligible employees must be granted up to 12 weeks of unpaid leave within a 12-month period under FLMA for the birth and care of a newborn child, care for a newly adopted or foster child, care for an immediate family member, (spouse, child under 18 or special needs child over 18, or parent, but not an in-law,) or when a serious health condition renders the employee unable to work. This law applies to both men and women; however spouses who share a common employer may be limited to a combined maximum 12-week leave so as not to seriously compromise the employer. It is important to note that state laws may also impact the employee’s rights to leave for pregnancy or illness. In Massachusetts, the Maternity Leave Act provides for a period of 8 weeks for absence, which in most cases will be included in the 12 week FLMA period. However, there are occasions when all or part of the FLMA period may be available to an employee in addition to the 8 weeks under the Maternity Leave Act.

Also important is that FLMA provides for a maximum of 12 weeks unpaid leave within a 12-month period as determined by the employer, and this time may be intermittent. This period may be determined as calendar year, any consecutive 12 months, 12 months fixed forward from the first date that an employee used FLMA, or 12 months rolling backward from FLMA utilization.

All efforts must be made to coordinate intermittent leave cooperatively between the employer and employee in an effort to minimally disrupt business operations. The employer also has the option to temporarily transfer the employee to a position with equal pay and benefits that would be better suited to intermittent periods of leave, or may temporarily classify the employee as part time. In the event that an employee is temporarily classified as part time to accommodate planned leave, such as 4 hours per day for medical treatments, benefits may be appropriately changed to match those of other part time employees.

Another important stipulation is that an employee may elect or an employer may require utilization of any accrued paid leave, such as sick time, personal days or vacation time for a portion or all of their FLMA leave. This paid leave may count against the 12-week FLMA period only if the employee is properly notified at the time when the leave begins.

Workers compensation time may run concurrently or be designated as FLMA time. However if the employee is determined to be medically eligible to return to work, but limited to light duty, and workers compensation payment ends, the employee may opt to continue his/her unpaid leave under FLMA for the duration of the 12-week period.

Originally the act was interpreted to provide that an employer had to notify an employee that leave time is to be determined under FLMA before the 12-week period started to run. However, that rule has been reinterpreted so as to not provide a trap for the employer. Further, an FLMA designation while the leave is in progress, or within two business days of the employee’s return, is sufficient notice, if an employer was not aware of the reason for the leave.

FLMA defines a “serious health condition,” as an illness, injury, or physical or mental impairment which mandates a period of inactivity or continued treatment by a healthcare provider. An employer may require a healthcare provider’s corroboration of the medical necessity of the leave and may require, at its own expense, a second opinion by a healthcare provider of the employer’s choice. In the event that a difference of opinions occurs, a third opinion may be obtained at the employer’s expense, by a mutually agreed upon healthcare provider. This third opinion is binding.

While an employee is taking leave under FLMA, an employer is legally obligated to maintain group health benefits for the employee under the same terms as if the employee was consistently working. In the event that a co-payment is required on the part of the employee, arrangements must be made between the employer and employee to cover that expense. The health insurance obligation under FLMA ends when an employee informs the employer that he/she will not return to work, or if the employee fails to return to work at the end of the 12-week leave. An employer may also have the option to recover health insurance premium payments it made during the leave in the event that an employee fails to return to work at the end of the FLMA leave. Additionally, an employer may discontinue health insurance benefits if the employee’s premium payment is in excess of 30 days overdue and after the employee receives a 15-day advance notice that benefits will cease if payment is not made.

FLMA also stipulates than an employee return to his/her original job or an equivalent one, with the same pay, benefits and other relevant terms and conditions. The only exception to this is a “key” employee. If a company must hire a replacement employee to perform the duties of the absent employee, it could cause “substantial and grievous economic injury” to business operations upon the employee’s return. The employer must inform the employee in writing that his/her job will not be available at the end of the leave, thus giving the employee the option not to take the leave or return sooner. This exemption from FLMA actually occurs very infrequently, as most employers prefer to find ways to work around the inconvenience rather that prove that an employee absence would detrimentally affect business.

The Family Leave Medical Act attempts to bridge the gap between an employee’s family obligations and a company’s needs. While attempting to minimally disrupt business operations, FLMA offers unpaid leave with maintained health benefits and guaranteed reinstatement for an employee who must care for a child, spouse or parent, or who suffers from a serious health condition him/herself.

Paul H. Rothschild, Esquire is a senior partner and chairman of the firm’s Litigation Department. His practice is concentrated in general litigation, including employer/employee disputes, as well as personal injury and product liability. He also represents a number of employers in general business and higher education, providing advice on issues relating to termination, discrimination, and avoidance of disputes. He can be reached at 413-781-0560 or [email protected]

by: Paul H. Rothschild, Esq.

September 2003