A Primer on the Family & Medical Leave Act (FMLA)

It is hard to believe because it is so ingrained in the workplace vocabulary, but 2008 is the fifteenth anniversary of the enactment of the Family & Medical Leave Act (FMLA).  FMLA questions dominate inquiries from the courts about employment law.  There are some basic questions about FMLA.

Does FMLA apply to every employer?

No.  It only applies to employers with fifty or more employees within 75 miles of the worksite, and the fifty employees must be employed in at least 20 weeks of the preceding calendar year.  As a result, many small private employers are not bound by FMLA due to this requirement.

Does FMLA apply to an Indiana court staff of only a few persons?

Yes.  The employees are counted as part of city, county or state governmental unit, so FMLA will apply to all courts.

For covered employers, does FMLA apply to all employees?

No.  The rights under FMLA do not apply to an employee unless the employee has worked for the employer for twelve months, which do not have to be consecutive.  Benefit time, such as sick leave, holidays, and vacation days count as part of the twelve months of employment.  Also, if an employee works part of one week, the entire week is counted in the twelve-month determination.  If an employee has repeatedly left and returned, the employer counts each week of work, however intermittent, until the 52 weeks of work mark is met.
In addition to the twelve-month requirement, an employee must have worked at least 1,250 hours for the employer, or an average of 25 hours per week during the year. This requirement should only become relevant when you have an intermittent employee who works a few days a week. Many part-time employees will be eligible along with the full-time employees.

How much time off does FMLA mandate?

An employee is entitled to twelve weeks leave in any twelve-month period.  There are four different ways to count a twelve-month period, and the employer has the right to choose.  However, once the decision has been made, the employer must give notice and use that method for all employees.  If the employer decides to switch methods, the employer must give sixty (60) days notice to all employees.  If the employer fails to make a written, public choice, an employee is then allowed to choose the method. The four methods are:

1. calendar year;
2. the date on which the employee’s leave begins;
3. any fixed twelve-month period, such as fiscal year, the employee’s date of hire, or any other specific marker that the employer selects; and
4. a “rolling” year.  This is measured by counting backwards from the time that leave is requested.  If John Worker asks to take leave December 1st, the employer would look back at the 52 weeks prior to December 1st to determine if John had already exhausted the twelve weeks of FMLA.  If John had taken ten weeks of FMLA the previous February, John would only have two weeks of FMLA left that he could take in December.

For an employer, the best choice is the rolling year, because it prevents stacking or over-lapping of the twelve weeks.  With the other methods, John could request twelve weeks of FMLA and before a year had elapsed, take more FMLA because it was counted as a new FMLA year.  For example, counting FMLA year as beginning when the employer requests leave, John could take 4 weeks of leave May 1, 2008 and then in March 2009 request eight more weeks.  As of May 1, 2009, John’s FMLA year would begin again.  John could ask for an additional twelve weeks and be off for twenty weeks starting in March 2009.
The Indiana Supreme Court and the Division of State Court Administration use the  calendar year method of computation.  The trial courts have freedom to make this decision individually, but once the decision is made, the employees need to be given written notice of which method the court chose.

Does FMLA require paid or unpaid time off?

FMLA only guarantees the time off and does not confer any rights to pay.  The employer benefit package determines whether any of the time off is with or without pay.  The employer can and should combine with FLMA its own paid benefit time.  There is no reason to wait until paid time off is exhausted to begin counting the time off as FMLA.

What conditions are covered by FMLA?

1. The employee’s own serious health condition, defined as a condition that requires absence from work for three or more consecutive days, is covered.  Pregnancy is an exception to the three day rule.  Any care related to pregnancy, including the need for rest, is covered by FMLA.  Voluntary cosmetic procedures are not eligible for FMLA, unless inpatient care is required or complications arise.
2. The care for an immediate family member, a spouse, parent, or child, is covered.  The care of grandchildren, grandparents, in-laws and other relatives is not covered.
3. The birth of a child to the employee, the adoption of a child by the employee, or placement of a foster child with the employee is covered.

This is a most basic primer.  Future articles will address many of the other questions generated by FMLA.  Our trial court judges have an open invitation to call me for advice on specific questions related to FMLA.

Trial Courts seeking advice on on FMLA and other employment law issues by contacting Brenda Rodeheffer directly at (317) 234-3936 or [email protected].