The Department of Labor’s rule change updates the FMLA so the law complies with the U.S. Supreme Court ruling in United States v. Windsor. That ruling struck down the federal Defense of Marriage Act provision that defined “marriage” and “spouse” as limited to opposite-sex marriage for purposes of federal law.
Before this rule change, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for FMLA leave depends on the law of the place where the marriage was entered into. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.
Enacted in 1993, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees can take leave for their own medical needs or to take care of a family member who has a serious health condition.
What are “covered employers”? The FMLA applies to any employer that employs 50 or more workers in a 75-mile radius each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
Which employees are eligible? Employees can take FMLA leave if they have worked for an FMLA-qualified employer for at least 12 months and have worked for at least 1,250 hours over the previous 12 months.
How much leave can workers take? Eligible workers can take up to 12 weeks of leave per year.
What can employees take leave for? Eligible employees can take leave for their own serious health conditions, to care for a family member (spouse, child or parent) with a serious health condition, or for childbirth, adoption or foster care. Workers can take leave consecutively or intermittently. Leave may run concurrently with workers’ compensation, short-term disability and salary continuation.
What is “a serious health condition”? The FMLA defines this as incapacity or treatment that involves inpatient care (an overnight stay) in a medical care facility, as well as subsequent treatment related to inpatient care. It also includes any period of incapacity due to pregnancy, a chronic serious health condition or a health condition lasting more than three days that requires treatment by a health care provider. The FMLA also applies to absences to receive multiple treatments to address serious conditions.
What other responsibilities do employers have? Employers that provide health benefits must continue them during an employee’s leave. Following the 12 weeks of unpaid leave, employers must reinstate the employee in the same job or an equivalent one. Employers that deny or restrict an employee’s rights under FMLA may be liable for lost wages and benefits, as well as damages and legal fees. Keep in mind that medical privacy rules apply to FMLA, and safeguard any medical information.
The employer has the ultimate responsibility of designating FMLA-eligible leave as FMLA leave based upon information furnished by the employee. You may not wait to designate FMLA leave after the leave has been completed and the employee has returned to work, unless you are: (1) awaiting medical certification to confirm a serious health condition, (2) unaware that leave was for an FMLA reason, and later receive employee requests for additional leave or (3) unaware of the situation and the employee notifies the company of the FMLA leave within two days after returning to work.
What are employees’ obligations? To qualify for FMLA leave, an employee must provide sufficient information to substantiate the need for leave. For medical leave, they do not have to have their medical provider supply a specific diagnosis, but merely certify the need for medical leave. Once an employee qualifies for FMLA leave, he or she does not have to provide advance notice if the leave is not foreseeable — for example, a migraine sufferer could leave work every time he gets a headache.
To complicate things, many states have their own family or medical leave laws. State leave laws may be more generous in certain areas, including: (1) employee hours requirement (1,000 vs. 1,250 hours), (2) the minimum number of employees required for the law to apply (15 vs. 50 workers) and (3) the definition of family member (to include in-laws). You’ll want to check to make sure that your leave policies comply with state laws.