Benchmark Institute is a training and performance development
organization dedicated to increasing the quality and quantity of
legal services to low-income communities.
The Family and Medical Leave Act of 1993 entitles employees
to take up to 12 weeks of unpaid, job-protected leave in a 12 month period
for specified family and medical reasons. Covered employers generally
include all public employers and private-sector employers who employ 50 or
more employees. Regulations that implement FMLA appear at 29 CFR Part 825.
FMLA is intended to promote the stability and economic security of
families as well as the Nation's interest in preserving the integrity of
The FMLA applies to any employer in the private sector who engages in
commerce, or in any industry or activity affecting commerce, and who has
50 or more employees each working day during at least 20 calendar weeks in
the current or preceding calendar year.
The law covers all public agencies ─ state and local governments ─ and
local education agencies ─ schools, whether public or private. These
employers do not need to meet the "50 employee" test. Title II of FMLA
covers most federal employees, who are subject to regulations issued by
the Office of Personnel Management.
To be eligible for FMLA leave, an individual must (1) be employed by a
covered employer and work at a worksite within 75 miles of which that
employer employs at least 50 people; (2) have worked at least 12 months
(which do not have to be consecutive) for the employer; and (3) have
worked at least 1,250 hours during the 12 months immediately before the
date FMLA leave begins.
The FMLA provides an entitlement of up to 12 weeks of job-protected,
unpaid leave during any 12-month period for the following reasons:
• Birth and care of the employee's child, or placement for adoption or
foster care of a child with the employee;
• Care of an immediate family member (spouse, child, parent) who has a
serious health condition; or
• Care of the employee's own serious health condition.
If an employee was receiving group health benefits when leave began, an
employer must maintain them at the same level and in the same manner
during periods of FMLA leave as if the employee had continued to work.
Usually, an employee may elect (or the employer may require) the use of
any accrued paid leave (vacation, sick, personal, etc.) for periods of
unpaid FMLA leave.
Employees may take FMLA leave in blocks of time less than the full 12
weeks on an intermittent or reduced leave basis when medically necessary.
Taking intermittent leave for a child’s placement, adoption, or foster
care is subject to the employer's approval. Intermittent leave taken for a
child’s birth and care is also subject to the employer's approval except
for pregnancy-related leave that would be leave for a serious health
When the need for leave is foreseeable, an employee must give the employer
at least 30 days notice, or as much notice as is practicable. When the
leave is not foreseeable, the employee must provide such notice as soon as
An employer may require medical certification of a serious health
condition from the employee's health care provider. An employer may also
require periodic reports during the period of leave of the employee's
status and intent to return to work, as well as "fitness for duty"
certification upon return to work in appropriate situations.
An employee who returns from FMLA leave is entitled to be restored to the
same or an equivalent job ─ defined as one with equivalent pay, benefits,
responsibilities, etc. The employee is not entitled to accrue benefits
during periods of unpaid FMLA leave, but the employer must return him or
her to employment with the same benefits at the same levels as existed
when leave began.
Employers are required to post a notice for employees outlining the basic
provisions of FMLA and are subject to a $100 civil money penalty per
offense for willfully failing to post such notice. Employers are
prohibited from discriminating against or interfering with employees who
take FMLA leave.
The FMLA provides that eligible employees of covered employers have a
right to take up to 12 weeks of job-protected leave in any 12-month period
for qualifying events without interference or restraint from their
employers. The FMLA also gives employees the right to file a complaint
with the Wage and Hour Division, file a private lawsuit under the Act (or
cause a complaint or lawsuit to be filed), and testify or cooperate in
other ways with an investigation or lawsuit without being fired or
discriminated against in any other manner.
Compliance Assistance Available
ESA's Wage and Hour Division administers FMLA. More detailed information,
including copies of explanatory brochures, may be obtained by contacting
the local Wage and Hour offices. http://www.dol.gov/esa/contacts/whd/america2.htm
The Wage and Hour Division has developed the Family and Medical Leave Act
Advisor, an online resource that answers a variety of commonly asked
questions about FMLA, including employee eligibility, valid reasons for
leave, notification responsibilities of employers and employees, and
rights and benefits of employees. Compliance assistance information is
also available from the Wage and Hour Division's website.
Employees and other persons may file complaints with the Employment
Standards Administration (usually through the nearest office of the Wage
and Hour Division). The Department of Labor may file suit to ensure
compliance and recover damages if a complaint cannot be resolved
administratively. Employees also have private rights of action, without
involvement of the Department of Labor, to correct violations and recover
damages through the courts.
Relation to State, Local and Other Federal Laws
A number of states including California, have family leave statutes.
Nothing in the FMLA
supersedes state law provisions that are more beneficial to the employee.
Employers must comply with the more beneficial provision.
Under some circumstances, an employee with a disability may have rights
under the Americans with Disabilities Act.
Under California’s recently created Paid Family Leave Program , leave must
be taken concurrently with leave under the federal Family Medical Leave
Act and the California Family Rights Act.
A useful chart compares the CFRA/FMLA ─ enforced by DFEH ─ and PFL.