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Family and Medical Leave Act (FMLA)

The FMLA is a federal statute that provides covered employees with up to 12 weeks of job-protected, unpaid leave during any 12-month period for the following reasons:  (1) birth and care of the employee's child, or placement for adoption or foster care of a child with the employee; (2) care of an immediate family member (spouse, child, parent) who has a serious health condition; or (3) care of the employee's own serious health condition.  The employee's group health benefits must be maintained during the leave.  The FMLA provides enhanced benefits for employees with family members in the armed forces.  The statute also bars retaliation against employees for asserting their rights under the statute.

The FMLA applies to employers throughout the country with at least 50 employees, including federal, state, and local governments.

To be eligible for coverage under the FMLA, an employee must have worked for the employer at least 1250 hours over the previous 12 months.  There are mandatory notice and certification requirements under the statute.

Employees or employers may choose to “substitute” (run concurrently) accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave.  An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy.  Under certain circumstances, FMLA leave can be taken intermittently, i.e., not in a single block of time.  

Under the FMLA, a “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical-care facility, including any period of incapacity or subsequent treatment in connection with such inpatient care; or continuing treatment by a health care provider (as variously defined under the regulations).  29 U.S.C. § 2611(11); 29 C.F.R. § 825.114(a).

If an employee proves a violation of the FMLA, the remedies available under the statute include reinstatement, back pay, front pay, liquidated damages, attorney’s fees, and costs.  Compensatory damages and punitive damages are not available under the FMLA.

An individual alleging a violation of the FMLA may go directly to court and is not required to file an administrative complaint with either the EEOC or the U.S. Department of Labor beforehand.  The time limits for going to court are:  within two years of the alleged violation or, in the case of a willful violation, within three years.

Because the rules and procedures under the FMLA are complicated, an employee should discuss his or her complaints of leave violations promptly with a qualified employment lawyer.

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