Family and Medical Leave Act

Family and Medical Leave Act

The original legislation for the Family and Medical Leave Act (FMLA) was signed into law on August 5, 1993. Basically, according to the American Federation of State, County and Municipal Employees (AFSCME), the FMLA provides certain employees with up to 12 workweeks of "unpaid, job-protected leave a year." This paper reviews the FMLA, the legalities and provisions of it, the updates, and examples of what is permitted and what is not permitted as regards individuals applying for the Family Medical Leave Act.

The Literature / Regulations Regarding the Family and Medical Leave Act

The provisions of FMLA allow for eligible employees to take those 12 weeks for the birth of a child, the adoption of a child -- or for the foster care of a child. Also the provisions of FMLA allow for up to 12 weeks leave for the "care of a spouse, parent or child" that has a serious problem related to health. Also the employee may take the 12-week leave for his or her own health issues. And when a spouse, parent or a child is called to active duty (in the National Guard or Army Reserves) that is considered to qualify for the leave. Indeed, "Any qualifying exigency" that arises from a spouse, parent or child being called into active duty makes the employee eligible for the family leave.

The FMLA also requires the employers to keep group health benefits consistent for the employee during the leave of absence. Further, eligible employees are able to take up to 26 weeks of "unpaid leave" if a family member in the service comes down with a serious illness or gets injured in the line of duty (www.AFSCME.org). What makes an employee eligible for the FMLA benefits? One, they have to have worked for that same employer for 12 months -- and it doesn't have to have been consecutive months of employment at that workplace. Two, they must have been employed in the workplace for 1,250 hours during those 12 months mentioned above prior to the start of the leave. In other words, the FMLA is not available for part-time employees.

Another interesting qualifying point is that the person wishing to take leave based on FMLA must be employed at a location "where at least 50 or more employees are working or where the number of workers within 75 miles is 50 or more" (www.AFSCME.org).

There are updated regulations to the Family Medical Leave Act from the U.S. Department of Labor. The "Final Rule" became effective on January 16, 2009, and it brings the regulations fully up-to-date regarding the military family leave entitlements. Under the National Defense Authorization Act for FY 2008, the new regulations, as mentioned above, covers the spouse, son, daughter, parent or next of kin to take those 26 weeks to care for a member of the National Guard or Army Reserves who is sick or has been hurt while carrying out the duties. The entitlement goes on to include those military individuals who are undergoing therapy, recuperation, or "is otherwise in outpatient status" or temporarily disabled (U.S. Department of Labor).

The National Defense Authorization Act (NDAA) further adjusts the time frame for which an employee must have worked in a particular worksite. Basically, it requires the employer to count the months and hours that reservists or National Guard members "would have worked if they had not been called up for military service" towards their FMLA eligibility (U.S. Department of Labor). What that means is that a National Guard member who served for a year or two in Iraq could come back to work and need a family leave arrangement prior to the required twelve months.

A memo from the U.S. Department of Labor spells out the possible scenario that an employer and employee would be working with:

"…Suppose that an employee who normally works a 40-hour week leaves civilian employment on November 5, 2001 to serve a tour of duty in Afghanistan, and is reemployed by the same civilian employer on June 10, 2002. On July 1, 2002,

the employee begins FMLA leave, at which time the employee has only 840 hours of actual work performed for the civilian employer in the twelve months prior to the leave request (18 weeks prior to the military service, and 3 weeks following reemployment, at 40 hours per week). If the employee is otherwise eligible for FMLA leave, the 1,240 hours that the employee would have worked but for his or her service in Afghanistan (31 weeks at 40 hours per week) should be added to the 840 hours actually worked, for a total of 2,080 hours for purposes of determining FMLA eligibility" (U.S. Department of Labor).

What is Permitted and Not Permitted as regards FMLA Requests?

There are two instances to be presented here that illustrate what can and cannot be used as criteria for a leave from work. The first -- Gooden v. Department of Corrections -- comes from an article in the Connecticut Law Tribune that points out what is legal and what is not legal when it comes to claiming FMLA leave. Courtney Gooden was hired as a vocational instructor by the Department of Correction in Connecticut in 1997.

Gooden asked for an "intermittent leave" because he claimed there were no other family members available to assist his wife with her pregnancy. On the application form for FMLA he selected "serious health condition" of a family member and "birth of your child." Gooden did not, however, claim that his wife was suffering from serious complications because of the pregnancy (which some women do) (Connecticut Law Tribune).

After the state of Connecticut denied his request -- which was denied because the state policy is that intermittent leave under the FMLA cannot be used in connection with the birth of a new baby at home -- the state did however grant Gooden's request for a family leave from January 2 and January 21, 2008. That wasn't good enough for Gooden so he filed a protest claim with the Equal Employment Opportunity Commission saying to them that he wasn't treated the same as other individuals in similar situations. But because he failed to prove that other employees -- in similar situations -- were treated differently than he was treated. Hence, the Commission denied his claim, according to the article in the Connecticut Law Tribune.

Gooden still wasn't ready to concede, so he sued his employer (Department of Correction) "alleging it violated the Family and Medical Leave Act, 29 U.S.C. & sect; 2601, and C.G.S. & sect;5-248a" (Connecticut Law Tribune). The employer (the defendant in this case) moved for "summary judgment" and Gooden did not object. The issue at hand was the fact that Gooden's wife was not suffering from a "serious health condition" -- and Gooden could not establish that his wife required treatment.

The court in this case granted summary judgment to the employer "and did not exercise jurisdiction over the plaintiff's state-law claim" (Connecticut Law Tribune).

The second instance in this section -- Tayag v. Lahey Clinic Hosp., Inc. -- has to do with an employee's seven-week trip to the Philippines with her husband, reported by the Fair Employment Practices Guidelines (FEPG) publication. The event that the employee and her husband were attending was a Roman Catholic-sponsored "Pilgrimage of Healing Ministry" (a "faith healing" event). Although the leave was not approved ahead of time, the employee took leave anyway, requesting "seven weeks' leave to care for her husband" (FEPG). Actually at various times the employee claimed various ailments that her husband was allegedly suffering from. At one time she claimed her husband was recovering from eye surgery, at another time he was recovering from hip surgery -- and still another time she made the claim that he was recovering from angioplasty.

Naturally the employer asked her to verify the claims and go through the paperwork as required, she failed to do that. Her employer told her she hadn't been authorized to receive the leave but she took leave anyway and traveled to the Philippines. In the meantime the employee's cardiologist forwarded to the employee a "medical certification stating that the employee did not need to take leave to care for her husband" (FEPG).

By the way the employee never mentioned to the employer that she was going to a faith healing event -- or that she was in fact traveling to the Philippines, the article continues. And so the leave was unapproved and the FMLA claims were denied. When the employee returned, she was terminated "for taking unapproved leave" -- and shortly thereafter she "sued alleging both FMLA and Americans With Disabilities Act violations" (FEPG).

But her claims were denied on "summary judgment" because her husband did not in fact receive medical treatment, nor did her husband visit any health care professional during the trip to the Philippines. The upshot of this incident is that even if caring for a sick spouse "on a trip for faith healing" had been approved by FMLA -- because of the potential "psychological benefits" -- the trip to the Philippines was not protected, the court found. Though the employee's husband did spend nearly four weeks being involved in the healing ministry, "nearly half of the trip was spent not in faith healing, but visiting friends, family, and local churches" (FEPG).

The bottom line is that the FMLA won't permit employees to take leave when it is a vacation with a "seriously ill spouse" -- even if caring for the spouse is an "incidental consequence" of bringing him along on a vacation. Not only was the employee's claim for unfairness vis-a-vis FMLA denied, her petition for "associational discrimination" in violation of the ADA was not approved as well.

The FMLA was a politically hot potato even before the presidential election of 1992. The first two versions of FMLA were vetoed by George Harold Walker Bush, and during the 1992 presidential election, candidates Bill Clinton and Bob Dole debated the merits of the proposed legislation. In the end Clinton won the election and the bill became law in 1993. But is the FMLA everything it is cracked up to be? According to the Mother Jones (Mencimer, 2008) the law is "incomplete. It does nothing for people who simply can't afford to take unpaid leave" (Mencimer).

Moreover, Mencimer goes on, the law leaves out "40% of the workforce, including millions of workers employed by companies with fewer than 50 employees in a 75-mile radius." It also leaves out part time workers and "strangely, flight attendants," Mencimer goes on. In the industrialized world, only the United States does not provide paid maternity leave, Mencimer asserts. That leaves the U.S. "on a par with such nations as Liberia and Swaziland," the writer goes on. And during the George W. Bush administration Bush attempted to "quietly…gut the law through the regulatory process" but did not succeed in that effort.

The conservative United States Chamber of Commerce has "relentlessly attacked the popular law" calling it an "expensive" burden on companies "rife with abuse" (Mencimer). And Republicans have tried to obstruct every attempt to expand FMLA. Apparently the Department of Labor under George W. Bush tried to push through new regulations that would "…make it easier for employers to deny leave requests," Mencimer writes. The regulations would also have allowed the employer of a company to "directly quiz an employee's doctor" as to the seriousness of his or her medical condition. However, those regulations did not become law, and as of 2010, if an employer wishes to contact a physician about a request for leave from an employee, that employee must give permission for the employer to contact his or her doctor. Moreover, the employer must have a medical professional -- not the boss -- make contact with the doctor.

One can imagine a supervisor who doesn't want the employee to take leave contacting the doctor and bullying that doctor into admitting that it was not truly a "serious health condition."