The federal Family Medical Leave Act (FMLA) provides certain employees up to 12 weeks of unpaid leave per each 12-month period. Leave may be taken for purposes of caring for a newborn child (or newly adopted child), to tend to an ailing family member or if the employee experiences a serious health condition. Revisions to the FMLA in 2008 extended this time to 26 workweeks if an employee took unpaid leave to care for a family member who is a member of the Armed Forces. Under the FMLA, the employee who takes such leave is guaranteed that his job is protected.
Background & Purpose
The FMLA was the first piece of legislation signed into law by President Bill Clinton a mere 16 days after he was inaugurated. The law went into effect August 5, 1993. The gender-neutral language of the FMLA ensured that it was not in violation of the 11th Amendment. However, as pointed out by FindLaw.com columnist Joanna Grossman, the FMLA was ultimately--and tacitly--designed to ensure that working women would not lose their jobs if they took extended leave to care for a newborn child, newly adopted child or foster child.
Arguments for & Against
Grossman's retrospective column on the 10th anniversary of the FMLA indicates a contentious legislative history prior to the act's passage (see Resource No. 1). Although the purpose of the act states, "... it is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing," the focus on equal parenting diminished as the arguments for and against FMLA ensued. Grossman indicates that factions opposed to the Family Medical Leave Act argued that it would discourage employers from hiring women of child-bearing age, thus "legislating them into unemployment." Those in favor of passing the FMLA pointed out that working women would legally suffer discrimination if employers fired them after they took an absence from work to care for children.
Who Can Take Leave Under FMLA
The Family Medical Leave Act affects employees who work for public agencies, including state, local and federal employers and schools. Additionally, the FMLA also applies to private-sector employees, if the employer has employed 50 or more employees in 20 or more workweeks, either in the current or preceding year. Those who wish to take unpaid leave must have worked for an employer for at least 1,250 hours for at least 12 months preceding the leave. Months of work need not be consecutive, notes Discrimination.com.
Exercising Rights
Discrimination.com indicates that employees who wish to take unpaid leave under the FMLA are required to notify the employer no less than 30 days prior to the time leave is to begin. In emergency situations, the employee is required to notify the employer as soon as practicable. An employer is authorized to request a medical certification if an employee has a serious health condition, or if the employee takes unpaid leave to care for an immediate family member (spouse, child or parent) with a serious medical condition.
Protections
The FMLA prohibits an employer from retaliating or discriminating against an employee who exercises her right to take unpaid leave. Upon her return to work, an employee is entitled to reinstatement to her former position or an equivalent position. Although the employee must continue to pay for her health benefits during unpaid leave, these benefits cannot be terminated by the employer during the employee's absence. The FMLA prohibits employers from garnishing the employee's accrued benefits, such as paid vacation time.
