Providing Family and Medical Leave
You may be required to give employees time off for illness, childbirth, or adoption.
It is often difficult for working people to successfully balance the demands of a job with personal and family needs. In response to this much-discussed problem, Congress passed the Family and Medical Leave Act (FMLA, 29 U.S.C. §§ 2601, and following). The FMLA requires certain employers to allow their employees to take up to 12 weeks of unpaid leave per year to care for a seriously ill family member, to recuperate from their own serious illness, or to take care of a newborn or newly adopted child. In most cases, the employer must reinstate employees when they return from leave.
This article discusses only the FMLA. Your state may also have a family leave law, and it may differ from the federal law in significant ways. For example, it may apply to smaller employers, which means that you may have to follow your state's law even if the FMLA doesn't apply to you. Also, your state's law may allow employees to take longer periods of leave. To find out about your state's law, contact your state's labor department.
Which Employers Must Provide Leave
The FMLA applies to your business and your employees if three conditions are met:
- You have 50 or more employees who work within a 75-mile radius. All employees on your payroll -- including those who work part time and those on leave -- must be included in this total.
- The employee seeking leave has worked for you for at least 12 months.
- The employee has worked for you for at least 1,250 hours (about 25 hours per week) during the 12 months immediately preceding the leave.
When You Must Provide Leave
An employee is entitled to take FMLA leave only for specified reasons. Not every personal or family emergency qualifies for FMLA leave. The employee must be seeking leave for:
- Birth, adoption, or foster care. A new parent or foster parent may take FMLA leave within one year after the child is born or placed in the parent's home. Leave may begin before the child arrives, if necessary for prenatal care or preparations for the child. If both parents work for the same employer, they may be entitled to less leave.
- The employee's serious health condition. Generally, an employee who requires inpatient treatment, has a chronic health problem, or is unable to perform normal activities for at least three days while under the treatment of a doctor has a serious health condition.
- A family member's serious health condition. You must grant leave to an employee who needs to care for an ill family member. Under the FMLA, only parents, spouses, and children are considered family members. Grandparents, same-sex partners, in-laws, and siblings are not included.
What You Must Provide
Under the FMLA, an eligible employee is entitled to take 12 weeks of unpaid leave in any 12-month period for the reasons listed above. When the employee's leave is over, you must reinstate the employee to the same position he or she held prior to taking leave, subject to these conditions:
- You do not have to reinstate an employee who would have been fired or laid off if not on leave. In other words, if your employee works in the accounting department and you decide, while the employee is on leave, to cut the entire department and outsource your bookkeeping needs, you are not required to reinstate the employee.
- You may refuse to reinstate certain highly paid employees. The FMLA recognizes how difficult it would be for many businesses to thrive without their top executives. The law allows you to refuse reinstatement if (1) the employee is among the highest paid 10% of the salaried workers you employ within 75 miles of the employee's workplace, and (2) taking back the employee would cause "substantial and grievous economic injury" to your business.
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