FMLA

1
FMLA

• 12 weeks of unpaid leave during a 12 month period
• At the end of the leave, employees are to be
  reinstated to the same or equivalent (not
  similar!) position
• Statutory purpose is?

2

• SEC. 2. FINDINGS AND PURPOSES.
• (a) FINDINGS.--Congress finds that--
• (1) the number of single-parent households and
  two-parent households in which the single parent
  or both parents work is increasing significantly
  
• (2) it is important for the development of
  children and the family unit that fathers and
  mothers be able to participate in early
  childrearing and the care of family members who
  have serious health conditions
• (3) the lack of employment policies to
  accommodate working parents can force individuals
  to choose between job security and parenting
• (4) there is inadequate job security for
  employees who have serious health conditions that
  prevent them from working for temporary periods
• (5) due to the nature of the roles of men and
  women in our society, the primary responsibility
  for family caretaking often falls on women, and
  such responsibility affects the working lives of
  women more than it affects the working lives of
  men and
• (6) employment standards that apply to one gender
  only have serious potential for encouraging
  employers to discriminate against employees and
  applicants for employment who are of that gender.
  

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b) PURPOSES.--It is the purpose of this Act--
(1) to balance the demands of the workplace with
the needs of families, to promote the stability
and economic security of families, and to promote
national interests in preserving family
integrity (2) to entitle employees to take
reasonable leave for medical reasons, for the
birth or adoption of a child, and for the care of
a child, spouse, or parent who has a serious
health condition (3) to accomplish the purposes
described in paragraphs(1) and (2) in a manner
that accommodates the legitimate interests of
employers (4) to accomplish the purposes
described in paragraphs (1) and (2) in a manner
that, consistent with the Equal Protection Clause
of the Fourteenth Amendment, minimizes the
potential for employment discrimination on the
basis of sex by ensuring generally that leave is
available for eligible medical reasons (including
maternity-related disability) and for compelling
family reasons, on a gender-neutral basis and
(5) to promote the goal of equal employment
opportunity for women and men, pursuant to such
clause.
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Family and Medical Leave Act

• Whos covered
• Workers have to be employed a year or more
• All private and public employers with 50 or more
  employees working within a 75 mile radius
• An employee must have worked at least 1,250 hours
  in the preceding year (DOL rules state employers
  must notify those who are ineligible)

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Exemptions from FMLA

• Highest paid 10
• Teachers and instructors
• Both spouses working for same employer (pregnancy
  leave is covered)
• Employer may include paid time off in the 12 week
  calculation
• Employer may demand benefits be repaid if
  employee does not return to work

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Policy Issues

• U.S. social legislation is generally directed at
  wage earning workforce. Even public assistance
  has a work component.
• FMLA is an example of legislation that is
  struggling to keep up with social evolution.
• Labor force participation by women has
  skyrocketed.
• Unpaid leave is a reflection of family care
  typically regarded as womens work. Is it?
• Opportunity cost is an important econometric it
  is assumed that women earn less than men so it
  costs a family less to have women at home
  providing care
• Is there bias against childless couples?
• What about unmarried couples?

7
FMLA is not used very often

• about 2 of all covered employees
• a survey by the US commission on Leave found
  about 42 of employees didnt know about FMLA

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Leave Requests

• Notice requirement is 30 days for foreseeable
  medical treatment but there are no penalties for
  failure of the employee to notify within this
  period.
• Medical emergencies do not require employer
  approval but must be serious, i.e., overnight
  hospitalization or 3-day absence from work.
• Once requested, the employer must notify the
  employee that leave being taken will be counted
  toward FMLA leave
• Employer may request certification.
• Employees need not specifically mention FMLA
• Absence under FMLA cant be counted against
  perfect attendance awards!

9
Coverage extends to

• A serious health condition if you cannot do your
  job.
• Care for a serious health condition of your
  spouse, children or parents
• Birth, adoption, or foster care placement for
  children.

10
Make whole remedies

• Recovery of lost wages and benefits
• Reimbursement of cost of providing family care
• Attorneys fees and witness costs
• Interest
• Reinstatement or promotion
• Some orders for liquidated damages under FMLA
  (double the amount owed)