Compliance Compendium: A Primer on the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is one of the most straightforward and yet cumbersome United States federal workplace laws. Consisting of three subchapters, 21 sections and 30 pages of definitions, requirements, explanations, repercussions and regulations, the FMLA:

Energizes some HR and total rewards (TR) professionals because of its intricacy (lots of considerations and caveats), focus on individual employee need cases and positive end-user impact (e.g., protected time off for an employee to bond after the birth or adoption of a child).
Drains others because it can be administratively burdensome, be the subject of application-related lawsuits (from current and former employees), and necessitate policing to root out instances of employee misuse.

This article is meant to serve as a primer for HR and TR pros to help them and their organizations better understand and comply with this law. For experienced practitioners, this may be a bit of a refresher. For newer practitioners, this may provide structure and depth to your knowledge on the subject.

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The Law’s Roots and Purpose

The FMLA was signed into law by President Bill Clinton on Feb. 5, 1993, with an effective date of Aug. 5, 1993. The legislation was ratified after several unsuccessful attempts by lawmakers during the administration of George W. Bush.

“I believe that this legislation is a response to a compelling need — the need of the American family for flexibility in the workplace,” Clinton stated on that signing day. “American workers will no longer have to choose between the job they need and the family they love.”

The legislation was rooted in job protection for working mothers.

“The need for this legislation is clear. The American workforce has changed dramatically in recent years. These changes have created a substantial and growing need for family and medical leave for working Americans,” Clinton said. “In 1965, about 35% of mothers with children under 18 were labor force participants. By 1992, that figure had reached 67%.”

The law, though, extends beyond working mothers, promoting equal utilization opportunity for men and women. Its purpose is to:

Allow eligible employees to take job-protected leave for specific family and medical reasons, helping them balance work and family responsibilities.
Ensure workers can take time off for:
- The birth and care of a newborn;
- The placement of a child for adoption or foster care;
- Care for themselves or an immediate family member with a serious health condition; or,
- Qualified military exigency or military caregiver leave.

While the federal law does not call for such time off to be paid, it does institute that the employee’s group health benefits be maintained during these periods away from work and that the individual be restored to their same or an equivalent job after the conclusion of this leave.

What Employers Are Covered Under the FMLA?

The FMLA applies only to “covered” employers in the private or public sector. Covered employers must provide FMLA-defined benefits and protections to eligible employees and comply with other responsibilities required under the law and its regulations at 29 CFR Part 825. (See the Department of Labor’s “The Employer Guide to the Family and Medical Leave Act” for more information.)

Private-Sector Coverage

A private-sector employer is covered by the FMLA if it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year. An employee is considered to be employed each working day of the calendar week if the employee works any part of the week. The workweeks don’t need to be consecutive.

In simplest terms, the employer must count an employee toward the “50 or more” if that individual:

Is a full-time, part-time, temporary or seasonal worker located in the U.S. (or in any U.S. territory or possession); and,
Appears on payroll records, whether or not any compensation is received for the workweek.

The law also covers foreign firms who have employees operating in the U.S.

The U.S.-based employer does not need to count:

Employees with whom the employment relationship has ended (e.g., they have been laid off);
Unpaid volunteers who do not appear on the payroll and do not meet the definition of an employee; and,
Employees at worksites outside the country (or its territories/possessions).

Public-Sector Coverage

Public agencies are covered employers under the FMLA, regardless of the number of employees they employ. These agencies include:

The federal government;
The government of a state or political subdivision of a state (e.g., city, town, county); and,
An agency of the U.S., a state or a political subdivision of a state, or any interstate governmental agency.

The term “state” includes any U.S. state, the District of Columbia and any U.S. territory/possession.

What Employees Are Eligible for FMLA Coverage?

For an employee to be eligible for leave under the FMLA, this individual must:

Work for a covered employer;
Have worked for the employer for at least 12 months prior to the start of the FMLA leave;
Have at least 1,250 hours of service for the employer during the 12-month period immediately before the FMLA leave’s starting date; and,
Work at a location where the employer has at least 50 employees within 75 miles of that worksite as of the date when the employee gives notice of the need for leave.

The What and When of Entitled Leave

Under the FMLA, eligible employees are entitled to up to 12 workweeks of leave or 26 workweeks of military caregiver leave in a 12-month period. An employee may take this leave in periods of weeks, days, hours and, in some cases, less than an hour. The total number of hours in those workweeks that an eligible employee is entitled to take on an intermittent or reduced schedule basis depends on the specific hours the employee would have worked had the individual not taken FMLA leave.

To take advantage of such leave when it is foreseeable, an employee generally must give at least 30 days’ advance notice of the need to take FMLA leave. If an employee does not provide this advance notice, and it was possible and practical to do so, the employer can delay the leave until 30 days after the date that the employee provides the notice.

If 30 days’ advance notice is not possible because the foreseeable situation has changed or the employee doesn’t know exactly when leave will be required, the employee must provide notice of the need for leave as soon as possible and practical.

Interaction with State Leave Laws

Many states have their own versions of family and medical leave that supplement or are more generous than the federal FMLA, so employees in states with these laws have access to the combined benefits.

Some of these laws provide for paid family leave. They also may cover more employees or for different leave reasons.

Editor’s Note: Additional Content

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