YOUR RIGHTS UNDER THE FAMILY AND MEDICAL LEAVE ACT OF 1993

Atlanta Legal Aid Society
AIDS Legal Project
Last Revised: March 2004

This article describes the rights provided under the Family and Medical Leave Act of 1993, commonly referred to as FMLA. This article is a brief overview of the Act and while it cannot explain all of the nuances and technicalities contained within the Act itself, it will acquaint the reader with the basic structure and rules of the Act.

The purpose of FMLA was to create more of a balance between the demands of the employer and the needs of the employee and the employee's family. FMLA does this by providing that eligible employees of covered employers may take up to twelve (12) weeks of unpaid leave for select reasons without fear of losing their jobs. The twelve weeks of leave may only be taken once in a given twelve month period.

The twelve month period is determined by the employer based on four options outlined within the authorizing statute: The employer may choose 1) a fixed twelve month leave period to begin at any time, 2) a twelve month period that starts when the employee first takes leave, 3) a twelve month period that counts backward from the date the particular employee takes leave, or 4) the employer may elect to allow the twelve month period to mimic the calendar year.

It is important to note that if the covered employer has not established a twelve month period before an eligible employee takes leave, the employee may choose the option that best suits her needs. The employer may later designate a formal twelve month period after giving all employees 60 days notice.

"Covered Employer"

If you noticed, the terms "covered employer" and "eligible employee" were used quite often in the above paragraph. The reason for this is that FMLA, like many statutes, depends heavily on the definitions of the words contained within it. Any given employer may not be a "covered employer" for the purposes of FMLA.

For instance, a given employer could be an "employer" for the purposes of the Americans with Disabilities Act but not an "employer" for the purposes of FMLA. So what is a "covered employer" under FMLA? A "covered employer" under FMLA is an employer that has had at least fifty (50) employees for each working day for a minimum of twenty (20) calendar workweeks in the current or the preceding year. The Act was designed to exclude small businesses and most businesses are too small to be covered by the Act.

Now that we know what is meant by a "covered employer," what is an "eligible employee?"

"Eligible Employee"

An "eligible employee" is one that is employed by a "covered employer" that employs at least fifty employees within seventy-five (75) miles of the employee's work site and the employee must have been employed for a minimum of twelve months and must have worked a minimum of 1,250 hours in the previous twelve months. 1,250 hours requires that the employee work more than twenty-four (24) hours a week for fifty-two (52) weeks since twenty-four hours a week for fifty-two weeks only comes to 1,248 hours worked.

Different kinds of leave time under the FMLA

Alright, now that we have determined what a "covered employer" is and what an "eligible employee" is, we must determine under what circumstances an "eligible employee" may take FMLA leave from a "covered employer." There are four categories of leave under FMLA: 1) the employee or the employee's spouse gives birth, 2) the employee adopts a child or a foster child has been approved to be placed with the employee, 3) the employee's daughter, son, spouse, or parent has a "serious health condition," or 4) the employee is unable to perform the functions of her job due to the employee's own "serious health condition." Most of that is self explanatory, but what in the world is a "serious health condition"?

"Serious Health Condition"

A "serious health condition" is defined as "an illness, injury, impairment or physical or mental condition that involves either 1) inpatient care in a hospital, hospice, or residential medical care facility, or 2) continuing treatment by a health care provider". Basically, this article could go on for fifty pages simply defining one term after another but that would not be particularly helpful or interesting.

Let's focus on some aspects of FMLA that are important to employees. The first is that an employer may require that the employee use any accumulated sick or vacation leave and the employer may count the sick or vacation leave as FMLA leave. Thus if an eligible employee has two (2) weeks of vacation leave and needs three weeks leave for his daughter's illness, the employer may require the employee to use his two weeks of vacation leave while counting it as FMLA leave and thus the employee would only have nine (9) weeks of FMLA leave upon returning to work.

It is necessary to point out that leave under FMLA need not be taken in large blocks or even in whole days. An eligible employee may take a day every now and then, or may reduce the hours worked in a given day or several days. The employee may designate the manner in which the leave is taken so long as it does not exceed twelve weeks in the twelve month period.

A point of caution for those thinking of taking FMLA leave is the issue of the continuation of employee benefits. Under FMLA the employer is required to continue the employee's benefits as if the employee was not on leave. But some employees are required to pay for part of their benefits package, especially insurance coverage. This is important when viewed in conjunction with the Health Insurance Portability and Accountability Act or HIPAA. HIPAA protects an employee's insurance so long as they have not been without coverage for more than 63 days. It is possible to exceed that limit while on FMLA leave if the employee does not pay the required costs for their benefits. Any employee that is required to pay for their insurance should be very careful not to allow their coverage to lapse for more that the allowed time under HIPAA.

The Family and Medical Leave Act of 1993 is a complex law. Its provisions are very specific and tailored only to apply to certain employees of certain employers. But, while the law is very narrow, do not simply assume that you are not covered. It is important to understand your rights so that you may exercise your rights and protect yourself at the same time. If you have any questions or concerns about your eligibility or rights under FMLA contact an attorney who is familiar with FMLA.

Examples:

1. Sally works for Happy, Inc. here in Atlanta. Happy, Inc. has two work sites, one in Atlanta and one in Savannah. Both of Happy's work sites employ about 45 workers all of whom work full time. Sally has been with Happy's for 14 months. She has worked 2,360 hours as a Happy employee. Sally has never taken FMLA leave. Sally needs to take 2 weeks leave to be with her son who has a serious health condition. Can Sally take leave under FMLA?

No. While Happy, Inc is a covered employer under FMLA, Sally is not an eligible employee since Happy, Inc does not employ at least 50 employees within 75 miles of Sally's work site.

2. Now assume that Happy, Inc. employs 60 workers at its Atlanta location. Can Sally take leave under FMLA?

Probably. The answer depends on whether Sally worked 1,250 hours during her first twelve months with Happy, Inc. One would assume that Sally has not worked over 1110 hours in the past 2 months but if she has then she would not be eligible for FMLA leave.

For more information please contact the Atlanta Legal Aid Society or Georgia Legal Services Program office nearest you.

Atlanta Legal Aid Society
AIDS Legal Project
Last Revised: March 2004