Employment Law Is Made Up

Employment law is made up a great many common law rulings, statutes, administrative rules and legislation. Its governance falls under the umbrella of both federal and state statutes, as well as administrative regulation and judicial precedent. When workers file claims for employment discrimination, unemployment compensation and workers' compensation, these claims fall under employment law. Likewise, overseeing workplace safety and standards, fair wages, retirement and pensions, employee benefits, and much more, is part of this wide-ranging legal area.

Employment law deals with the employer and the employee's actions, rights and responsibilities, as well as their relationship with one another. A renowned, prevalent administrative regulatory body for employment law is the Department of Labor, which exists on both the federal and the state level (Employment Law - Guide to Labor Law, 2012). One of the statutes that falls under the umbrella of employment law is that of the Family and Medical Leave Act (FMLA).

Prior to 1993, the United States had no national family and medical leave legislation, even though the Pregnancy Discrimination Act of 1979 did require companies to offer temporary disability programs to cover pregnancy like any other disability. Some employees had access to leave through union contracts, employer policies, or state statutes, but coverage provided under these provisions was rarely as comprehensive as coverage provided under the FMLA. A lot of employees had no family or medical leave coverage prior to the FMLA (Wage and Hour Division (WHD), n.d.).

The FMLA, which was passed by Congress and signed by President Clinton in February 1993 and went into effect in August 1993, requires certain covered establishments with 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave per year to eligible employees who need leave to care for a newborn, newly adopted or newly placed foster child; a child, spouse, or parent who has a serious health condition; or the employee's own serious health condition, including maternity-related disability and prenatal care.

"Employees are eligible for protection under the Act if, in addition to working for a covered establishment at a location where at least 50 employees are employed within 75 miles of the worksite, they have worked for this employer for at least 12 months; and have worked at least 1,250 hours for this employer during the 12 months before leave is needed" (Wage and Hour Division (WHD), n.d.).

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

Eligible employees are entitled to twelve workweeks of leave in a 12-month period for: the birth of a child and to care for the newborn child within one year of birth the placement with the worker of a child for adoption or foster care and to care for the newly placed child within one year of placement to care for the employee's spouse, child, or parent who has a serious medical condition a serious health condition that makes the employee unable to perform the essential functions of his or her job any qualifying necessity arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on covered active duty (U.S.

Department of Labor, 2010). A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee's job, or prevents the qualified family member from participating in school or other daily activities.

Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than three consecutive calendar days combined with at least two trips to a health care provider or one trip and a routine of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment (Employee Rights and Responsibilities under the Family and Medical Leave Act, 2009).

Although FMLA leave is unpaid, both the employer and the employee are allowed to coordinate the employee's FMLA leave with paid leave, such as vacation days and sick days. An employee may voluntarily elect to substitute paid vacation, personal or family leave days, or sick days for FMLA leave days, if the reason the employee is taking FMLA leave would allow him or her to take those days as paid days off.

An employer may also mandate that some of its employee's paid leave be credited against FMLA leave (Rights and Responsibilities under the FMLA, 2012). Upon return to work, the employee must be reinstated to the same or a legitimately equivalent position. If the employee is not eligible for such a position because he or she needs to renew a license, pass a continuing education class, or the like, the employer must give the employee a reasonable opportunity to fulfill this requirement.

The FMLA excludes from the reinstatement requirement certain highly compensated employees, where reinstatement would cause the employer serious economic hardship provided the employer tells the employee he or she will not be reinstated after leave, and the employee does not return to work. Another exception to the reinstatement requirement is if the employer can show that the employee would have been fired even if the employee had not taken FMLA leave. This is called the positive elimination defense.

For instance, if an employer closes a factory because business is bad, the employer would not have to reinstate an employee returning from FMLA leave (Rights and Responsibilities under the FMLA, 2012). "In November 2008 the Department of Labor (DOL) put out its Final Rule to put into practice the first-ever amendments to the Family Medical Leave Act (FMLA). The amendments come from the National Defense Authorization Act (NDAA) of 2008 and give new military family leave entitlements.

The Final Rule also considerably changed a lot of other parts of the implementing regulations of the FMLA for the first time since 1995. The Final Rule went into effect on January 16, 2009 just four days before President Bush left office" (the Family and Medical Leave Act, n.d.).

While the new regulations offer significant new entitlements to protected leave for letter carriers who have family members who serve in the Armed Forces, they also put into practice new burdens on workers who need leave for serious health conditions that make it harder for them to use the leave. For instance, the Final Rule has made clear the definition of serious health condition in cases concerning continuing treatment.

Prior to the change, a serious health condition could entail incapacity of more than three successive calendar days plus two visits to a health care provider or one visit which resulted in a regime of continuing treatment under the health care provider's supervision. The new rule changes that condition to more than three full consecutive calendar days. Partial days no longer count.

Also under the new rules, the two visits must now take place within thirty days of the beginning of the incapacity and the first visit must take place within seven days of the first day of incapacity. Particularly, the health care provider, not the worker, must establish if the second visit within the thirty days is required. Under the previous rules there was neither a thirty day nor a seven day requirement.

Finally, the Final Rule has defined periodic visits for chronic serious health conditions as at least two visits to a health care provider per year. There was no two visit condition prior to the alteration (the Family and Medical Leave Act, n.d.). "In addition, under the previous regulations a worker did not have to declare his or her rights under the FMLA or even mention it by name when seeking leave for a FMLA qualifying reason.

Under the Final Rule, this applies only to when a worker seeks leave for the first time for the FMLA qualifying reason. Once FMLA leave has been granted for an employee's health condition, the worker, in making future requests for leave, must expressly reference either the qualifying reason or the need for FMLA leave" (the Family and Medical Leave Act, n.d.). There have been a couple of changes in the employer's responsibilities that went into effect in January 2009.

One of these changes permits employers to deny perfect attendance awards to employees who do not have perfect attendance because they were out on FMLA leave. Another change is that employers are no longer required to employ a physician to contact an employee's health care provider for information. This can now be done by other employees in the company as long as it is not the employee's direct supervisor (Greenwald, 2009).

Congress has altered the FMLA again in the National Defense Authorization Act (NDAA) of 2010 to increase the coverage of both military caregiver leave and qualifying exigency leave. On February 15, 2012, the DOL published a Notice of Proposed Rulemaking in the Federal Register to integrate the changes commanded by the amendment.

On June 22, 2010, the DOL in an Administrator's Interpretation clarified the definition of son and daughter under the Family and Medical Leave Act to make sure that a worker who takes on the role of caring for a child receives parental rights to family leave regardless of the legal or biological connection. According to the rule no one who loves and nurtures a child everyday should be not be able to care for that child when he or she falls ill.

No one who steps in to parent a child when that child's biological parents are not present or incapacitated should be deprived of leave by an employer because he or she is not the legal guardian. No one who aims to raise a child should be denied the occasion to be present when that child is born simply because the state or an employer fails to distinguish his or her relationship with the biological parent (the Family and Medical Leave Act, n.d.). Employees have responsibilities in regards to FMLA.

Employees must provide thirty days advance notice of the need to take FMLA leave when the need is foreseeable. When thirty days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer's normal call-in procedures. Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave.

Sufficient information may include that the employee is unable to perform job functions; the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. Employees also must inform the employer if the requested leave is for a reason for which FMLA leave was previously taken or certified.

Employees also may be required to provide a certification and periodic recertification supporting the need for leave (Employee Rights and Responsibilities under the Family and Medical Leave Act, 2009). Employers have certain responsibilities in the enforcement of FMLA. One of the first things that an employer must do is to determine an employee's eligibility. An eligible employee is one that has been employed with a company for at least 1,250 hours during a twelve month period.

The burden is on the employer to show records that the employee has not worked the required amount of time. If the employer cannot show that proof the employee is eligible to use FMLA. An employer must give an employee written notice within two business days, if they are not eligible for FMLA. If the employer does not give the notice within the two business days, the employee is eligible to take the leave. An employer is not allowed to terminate FMLA if they fall below the 50 employee requirement.

Once a leave has been granted, the employer cannot change the leave. An employer can ask an employee to provide medical documentation from a health care provider stating the reason that FMLA in needed. An employer can also ask for the employee to provide documentation that they are able to return to work. A covered employer is required to maintain the same group health insurance coverage for an employee that they had prior to the leave.

Every employer covered by FMLA must post and keep posted the rules pertaining to FMLA. This posting must be in a place easily accessible by all employees (Vikesland, 2006). FMLA makes it illegal for any employer to: hinder, restrain, or deny the exercise of any right provided under FMLA Discharge or discriminate against any worker for opposing any practice made illegal by FMLA or for involvement in any proceeding under or relating to FMLA. A worker may file a complaint with the U.S.

Department of Labor or may bring a private lawsuit against an employer if such takes place. FMLA does not affect any Federal or State law prohibiting discrimination, or take the place of any State or local law or collective bargaining agreement which provides greater family or medical leave rights (Employee Rights and Responsibilities under the Family and Medical Leave Act, 2009). Both employers and employees benefit from workplaces that encourage health and safety and support an appropriate balance between work and family demands.

Although various aspects of the FMLA and its implementing regulations operate well, others serve to undermine the spirit of the FMLA and are inconsistent with Congress' intent in enacting the law. Simply put, there have been serious unintended consequences that have become clearer with greater experience of how the regulations have worked in actual practice, in actual workplaces (Unintended Consequences of the FMLA and its Regulations, n.d.). Many unintended consequences of the FMLA result from FMLA leave being used intermittently for chronic health conditions.

Intermittent leave taken for chronic conditions almost always involves what have become known as unscheduled, unannounced, unforeseen, or unpredictable absences. The unintended consequences of these intermittent, unscheduled absences are significant. Employers, employees, customers, and the public are all adversely affected by unscheduled absences in numerous ways that were not contemplated when the Act and its implementing regulations were adopted.

A better balance is now needed between the original, admirable purposes of the FMLA and the way the current regulations have operated in practice (Unintended Consequences of the FMLA and its Regulations, n.d.). When an employee is absent because of unscheduled FMLA intermittent absences, the employer faces a productivity problem. The employer could hire a temporary employee, but frequently no qualified temporary employee is available on.