Family and Medical Leave (FMLA) Primer

(Last Updated On: April 18, 2018)

Written by: D. Paul Holdsworth, Esquire

It is no secret to employers that employees who have happy and balanced lives are productive employees. Over the last several decades, there has been a greater understanding among employers of the importance of facilitating work-life balance for employees. Part of this means allowing employees to address serious obstacles or challenges outside of the workplace, without worry of adverse employment consequences.

Among other reasons, the Family and Medical Leave Act (“FMLA”) of 1993 was enacted to “balance the demands of the workplace with the needs of families” and “to entitle employees to take reasonable leave for medical reasons” while still accommodating the “legitimate interests of employers” and promoting equal employment opportunity.1

In general terms, the FMLA provides certain job security protections to employees who need to be absent from work for certain serious medical or family-related reasons. It guarantees eligible employees up to 12 weeks of unpaid leave, within in a 1-year period, following certain delineated events, including a serious personal health problem, a family member’s serious illness, or the arrival of a new son or daughter.2 The FMLA similarly prohibits employers from interfering with or denying the rightful exercise of these rights, subjecting violators to consequential damages and certain equitable relief.3 Employers are likewise prohibited from discriminating or retaliating in any way against employees who have exercised rights under the FMLA.4

As with other federal employment statutes, such as the Fair Labor Standards Act, the FMLA’s provisions often run parallel to state leave statutes. In cases where a state has enacted leave statutes or regulations, the law which provides the broadest available protection to the employee will govern.5  Virginia has not enacted its own employee leave legislation, and so Virginia employees only have the rights guaranteed by the FMLA.

Critically, for employers and employees alike, the first determination in any potential leave case is whether the Act’s provisions are even applicable. The FMLA does not apply universally to all employers. Instead, employees are eligible for the protections of the FMLA only if (1) the employer employs 50 or more employees for each working day during each of 20 or more calendar weeks in the current or preceding calendar year,6 and (2) there are 50 or more employees within 75 miles of the worksite of the employee requesting leave under the FMLA.7   Additionally, in order to be eligible for leave under the FMLA, the employee must be employed by the employer for at least 12 months prior to the date the leave commences, and must have worked at least 1,250 hours during the 12 months immediately preceding the leave.8

If eligible, an employee may take leave under the FMLA for any of the following reasons:

  • The birth of a child and post-natal care of the child9
  • The placement of a child with the employee for adoption or foster care10
  • A serious health condition of a family member (child, spouse, or parent)11
  • A serious health condition of the employee12
  • A “qualifying exigency” arising out of the fact that an employee’s family member (child, spouse, or parent) is on active duty in the Armed Forces13
  • To care for an injured family (child, spouse, or parent) serviceman or veteran during rehabilitation14

While the FMLA guarantees the right for eligible employees to take the leave, there is no requirement for the employer to remunerate the employee during the leave. Indeed, 29 C.F.R. § 825.207(a) explicitly states: “Generally, FMLA leave is unpaid leave.” Notwithstanding, an eligible employee may elect to use any accrued paid leave he or she has accumulated, and, in fact, employers may require the employee to use accrued paid leave as long as there is an existing policy setting forth such requirement.15   In either event, the employee must comply with any requirements under the employer’s established paid leave policy.16

Although there are limited exceptions for “certain highly compensated employees,”17 and assuming that the employee is still able to perform an essential function of the position, the FMLA requires the employer to reinstate the employee to the same or an equivalent position, including the same or equivalent pay, benefits, and other terms and conditions of employment.18

This non-exhaustive primer has sought to provide a very brief overview of employers’ and employees’ rights under the FMLA. If you are an employer or employee who has a potential FMLA question and need specific counsel or guidance, please contact Paul Holdsworth or any of the employment law attorneys at Glenn, Feldmann, Darby & Goodlatte. We would love to help.

1 29 U.S.C. § 2601(b).
2 Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002) (citing 29 U.S.C. § 2612(a)(1)).
3 Id. (citing 29 U.S.C. §§ 2615(a)(1), 2617(a)(1)).
4 Id. § 2615(a)(2)
5 29 C.F.R. § 825.702(a).
6 29 U.S.C. § 2611(4)(A)(i).
7 Id. § 2611(2)(B)(ii).
8 29 C.F.R. § 825.110(a).
9 29 U.S.C. § 2612(a)(1)(A).
10 Id. § 2612(a)(1)(B).
11 Id. § 2612(a)(1)(C).
12 Id. § 2612(a)(1)(D).
13 Id. § 2612(a)(1)(E). There are several “qualifying exigencies” which are spelled out in 29 C.F.R. § 825.126(b). Some examples include leave to address issues related to the family military member’s short notice call-up, to attend certain military events related to the family member’s call to active duty, and up to 15 days’ leave to spend time with a military member who be on a short-term rest and recuperation from active duty. See id. § 825.126(b)(1), (2), & (6).
14 29 U.S.C. § 2612(a)(3).
15 29 C.F.R. § 825.207(a).
16 See id.
17 29 U.S.C. § 2614(b)(1)–(2).
18 29 C.F.R. § 825.216(c).
19 29 U.S.C. § 2614(a)(1).

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