The What, Why, How, and Who of the Family Leave and Medical Act
Douglas E. Jones
MGMT 5843
Current Issues in Human Resource Management

Abstract The Family Leave and Medical Act is one of the acts approved by Congress to allow for an employee to have a certain amount of time to deal with a medical emergency. In this informa-tional paper, I will discuss the 4 major reasons for implementing of the FMLA. I will begin with what is FMLA, that is a thorough definition of FMLA and what it was originally intended for. Then I will proceed with the why of FMLA. Why was this act proposed and why was it passed into law. Next, I will discuss how the FMLA works. How is it supposed to work and is it actual-ly working? Included in this, I will present some case studies to that will present different as-pects of FMLA. And finally I will discuss who uses FMLA. Who was it intended to help, who it is actually helping and who it is harming. Also, I will present case studies that will either confirm or deny if the FMLA is working. Finally I will offer some possible solutions to help to fix what is broken with FMLA and even possibly offer some suggestions for further research on FMLA.
Introduction
FMLA is designed to allow certain family members up to 12 weeks unpaid leave for family emergencies. It was enacted in 1993 but has had some changes made to it due to legisla-tion. FMLA was originally designed to cover both employees and employers. Since its inception, there were some issues with it and the government and several other agencies have worked to-gether to attempt to make FMLA better and more manageable. All employers with 50 or more employees are "covered employers" under FMLA, the same is true for public employers of primary and secondary schools, regardless of the number of employees (Rosseau, 2008, 97). Does this hurt or help the small business? The overall purpose of this paper is to allow you to understand the FMLA. I will discuss the major reasons for imple-menting the FMLA and will offer case studies that either show that it is working or it is not. Fi-nally I will summarize my findings and offer opportunities for further research on this very im-portant topic. What is FMLA? The FMLA’s purpose, as defined by the U.S. Department of Labor (DOL), was to allow employees to balance their work and family life by taking reasonable unpaid leave for certain family and medical reasons (Marczely, 2008). The law said that employees may choose to use their paid leave, or employers may require their employees to use their paid leave for family or medical reasons to cover some or all of the FMLA leave taken (Marczely, 2008). FMLA grants eligible employees two different types of rights: substantive and proscriptive (Burkhart, ). Sub-stantive rights come in 2 distinct forms: First, the right to take up to twelve weeks unpaid leave for family emergency or medical reasons. Secondly, the right of employees to return to their orig-inal position they held before the leave or a position with the same pay, benefits, and other terms and conditions (Burkhart, ,986). Employees only have 1 proscriptive right. The right to freedom from retaliation or discrimination from the employer for exercising their FMLA rights (Burkhart, , 987). For employees to enforce these rights, the FMLA gives plaintiffs a private right of action to seek both equitable relief and monetary damage against employers who violate or deny FMLA rights (Burkhart, , 987). FMLA leave privileges are open for 4 reasons: for the birth and care of the newborn child of an employee; for placement with the employee of a child for adoption or foster care; to care for an immediate family member (spouse, child, or parent) with a serious health condition; or to take medical leave when the employee is unable to work because of a seri-ous health condition (Solis,2011). Employers of personnel who have FMLA rights need to know exactly what a "serious health condition is". A "serious health condition" is that an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment (Dwoskin, 2010, 37) (Zachary, 2010, 22). Continuing treatment has, in the past, been left up to interpretation. How-ever, new regulations have been set forth that clarify this. The new regulations state that 2 visits within 30 days of the beginning of the period of incapacity, unless extenuating circumstances exist, and that the first doctor visit must occur within 7 days of the first day of incapacity (Dwoskin, 2010, 38-39). Also included in the definition of incapacity is, the employee must be unable to work, go to school, or engage in regular daily activities because of the medical condi-tion, its treatment, or the employee's recovery (Zachary, 2010, 23). FMLA states that care for a son or daughter was redefined to include care for an adult child with a disability. An adult child who has a disability and is incapable of self-care because of this disability is now covered under FMLA (Dwoskin, 2010, 39). There are new versions of FMLA that include a clause for military. In December 2007, legislation was proposed to Congress to extend the FMLA to include family military leave. It was vetoed by President Bush and when Congress went back in session in 2008, an amended version was proposed and President Bush signed it into law on January 28, 2008 (Gisonny, 2008, 10). Under this law, employees can take an unpaid FMLA leave in two military-related situa-tions:
1. An eligible employee will be entitled to a total of 12 weeks of FMLA leave during a 12-month period because of any qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces (including, apparently, the National Guard and Reserves) in sup-port of a “contingency operation”.
2. An eligible employee who is the spouse, son, daughter, parent, of the next of kin (i.e. nearest blood relative) of a member of the armed forces, National Guard, or Reserves is entitled to a total of 26 weeks of FMLA leave during a single 12-month period to care for the family member if the individual incurred a serious injury or illness while on active duty (Gisonny, 2008, 11). Even though there are 2 different situations for military FMLA, the maximum entitlement for a 12-month period is 26 weeks (Gisonny, 2008, 11). The two situations for military FMLA included terms like contingency operation, qualify-ing exigency, and serious injury or illness. These terms need to be clarified. Contingency opera-tion means that a military operation is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations or hostilities against an enemy of the United States or against an opposing military force; or results in the call or order to active duty (or retention on active duty) of members of the armed forces during a war or during a national emergency declared by the president or Congress (Gisonny, 2008, 11). The definition of qualifying exigency has not been issued, however DOL offers these potential situations: Making child care arrangements, Making financial and legal arrangements to address the service members absence, Attending counseling related to active military duty, At-tending official ceremonies or programs where family participation is requested by the military, Attending farewell or arrival programs, Attending to affairs caused by a service member's "miss-ing" status or death (Gisonny, 2008, 11). Serious injury or illness means an injury or illness in-curred in the line of active duty that may render the covered family member medically unfit to perform the duties of the member's office, grade, rank, or rating (Gisonny, 2008, 11). FMLA covers the employee for the above stated reasons. Many people do not know about the timeframes set forth by the FMLA. A person who is claiming FMLA does not have to exhaust their FMLA in one lump sum. It can be used in intermittent fashion (Gisonny, 2008, 11) (Dwoskin, 2010, 39-40). While FMLA does not have to be paid leave, employers do have to en-sure that they continue their group health benefits
Why FMLA? In this portion of my paper, we will gain a better understanding of why FMLA was pro-posed. In the past, there was no legislation that protected employees from punishment, harass-ment, or termination after taking time off for illness or injury. Before FMLA was proposed, em-ployers and peers alike could deter a fellow employee or peer from taking this time off. Often the employer could punish their employees for taking what they called "unnecessary" time off. Also, the employee who took the time off could be harassed by other employees or their supervisors. There were even times when an employer could and has in the past, terminated the employee for taking this time off. With the enactment of FMLA, the employee is now covered when an illness or injury is making it needed for them to take time off. This was a long and arduous process and Congress felt that the need to protect and ensure the stability of American families, especially with the dramatic changes in the composition of the workforce (Mello, 2006, 151). There were 4 facts that Congress recognizes that greatly influenced the proposing and passing of FMLA. First, Congress understood that the number of single-parent households was increasing. Secondly, the number of 2-parent households with both the parents working full-time was increasing. Third, early childhood development was aided by the greater participation of parents in child rearing. And finally, the lack of employment policies that accommodated working parents often forced individuals to choose between their own job security and their parental responsibilities ( Mello, 2006, 151-152). Also in the decision making process was the variety of women's groups that be-gan pressuring Congress for some type of family leave, especially now that most other industrial-ized countries have paid-leave programs to protect employees (Mello, 2006, 152). The original intent of FMLA was to cater equally to both employees and employers (Nelson, 2005, 610). Congress intended that the FMLA should not prevent employers from giving employees more leave than the FMLA required (Nelson, 2005, 610-611). The intent of Congress towards FMLA showed the people that Congress believed in the effectiveness of the mandated employee leave policies and showed that Congress believed that FMLA would be cost effective to employers (Nelson, 2005, 611). If you give employees the time needed to take care of family and loved ones, they are more likely to stay in their current positions. This will save money because then the employers do not have to rehire or train someone else to do your job.
How does FMLA work? The FMLA is designed to allow eligible employees 12 weeks of job-protected unpaid leave from work to address family and medical issues (Baum, 2006, 432). Let's discuss what ex-actly is eligible employees. To be an eligible employee there are certain restrictions. The most no-table is the hours restriction. Employees are eligible for FMLA if they have worked for the same employer for at least 12 months and have put in at least 1,250 hours (Danzig, 2009, 64) (Utz, 2007, 17). The FMLA also protects veterans rights. Especially those veterans who had served in the National Guard or Reserve. If a veteran has not completed the 12-month period and is called into active duty, under the Uniformed Services Employment and Reemployment Rights Act (USERRA), then the time that employee spent on military service, as is reemployed by the same employer, must be counted (Utz, 2007, 17) (Rosseau, 2008, 99). The FMLA applies to employers who have at least 50 or more employees (Utz, 2007, 18). For purposes of the 50 employee rule, part-time employees are considered employed each work-ing day of the calendar week, as long as they are maintained on the employer's payroll (Utz, 2007, 18). Employees of U.S. firms stationed at worksites outside the U.S or outside U.S. terri-tories and possessions, are not protected by FMLA (Utz, 2007, 19). There are certain restrictions on employees who want to take FMLA. This is mainly be-cause when the legislation was originally introduced, companies expressed some concerns to Congress. One of those concerns was that the FMLA would be burdensome and disruptive to company operations (Zachary, 2010, 22). Congress looked into it and decided that they would place some restrictions on employees that want to take FMLA. First, the employee must notify their employer that they are taking FMLA leave and must provide medical documentation for the leave (Zachary, 2010, 22). To be more specific, the employees must state at least the following when requesting FMLA leave:
• Whether they have a condition causing inability to perform their job functions (or keeping a covered family member from participating in daily activities);
• How long they expect the absence to last; and
• Whether they (or family members) intend to visit a health care provider or are receiving treatment (Rosseau, 2008, 104).
Additionally, the employee must take leave only for a serious health condition (which I defined earlier in this paper) that makes the employee unable to perform the essential duties of their job (Zachary, 2010, 22). There is a 30-day advance notice requirement for foreseeable leave that em-ployees need to abide by (Rosseau, 2008, 103). When the need for leave is unforeseeable, the current rules state that the employee must provide notice to their employer "as soon as practica-ble" (Rosseau, 2008, 103). As soon as practicable means between 1 of 2 business days as an outer limit (Rosseau, 2008, 103-104). If the unforeseeable circumstances are of the nonemergency type, then the employee should give notice the same business day, or if after business hours, the next business day (Rosseau, 2008, 104). Calling in sick without any explanation will not trigger em-ployer obligations under the FMAL (Rosseau, 2008, 104). If employers request to inquire about an employee's medical condition, they should respond to reasonable requests or risk losing their FMLA protection (Rosseau, 2008, 104). Along with the employee restrictions, there are certain requirements that employers need to abide by also. The general notice requires that employees post an approved DOL notice that summarizes the pertinent FMLA provisions and explaining how employees can file a charge if they believe their rights have been violated (Rosseau, 2008, 102). The notice must be placed in a conspicuous place (Rosseau, 2008, 102) and can be of electronic means, provided all employees have access to the electronic media (Rosseau, 2008, 102). Also included in the posting, employ-ers are additionally required to provide a copy in a company handbook. This company handbook can also be paper or electronic and all the rules above would apply (Rosseau, 2008, 102). Also, employers are required to provide an FMLA eligibility notice within 5 business days of an employee's leave request (Rosseau, 2008, 102). The eligibility notice must include the fol-lowing information:
• Whether they are eligible for FMLA leave, and if not, why;
• How much FMLA leave is available to them in the 12-month period;
• What the essential job functions are for employees required to provide fitness-for-duty certifications; and
• How the FMLA entitles them to unpaid leave for any qualifying absence, regardless of compliance with terms and conditions of the employer's paid leave policies (Rosseau, 2008, 102-103).
If the employer requires a medical certification, then the employer would have to provide the medical certification form along with the above eligibility notice (Rosseau, 2008, 103). Employers must designate absences as FMLA leave within 2 business days of receiving a leave request under the designation notice, under the current rules (Rosseau, 2008, 103). The pro-posed legislation that I talked about earlier, would extend the time frame for this notice to 5 business days from receipt of information that is sufficient to meet the FMLA requirements (Rosseau, 2008, 103). Also included in the designation notice, when a chronic health condition exists, employers must provide written notice of how much leave (if designated FMLA leave) is used during the past 30 days (Rosseau, 2008, 103). Although there is no specific format for the written notice, in the above situation, employers must notify the employee every 30 days of how much FMLA leave has been taken, it could be provided on the employees pay stub, for example (Rosseau, 2008, 103). When FMLA was first proposed, there was no retroactive designation of FMLA leave. In other words, employees could not go to their employees and lobby for past leave time to be des-ignated FMLA leave. Under the new rule, there are two reasons that retroactive designations would be permitted:
1. As long as employers provide appropriate notices, and
2. the employees are not harmed by the failure to designate leave (Rosseau, 2008, 103). As long as there is mutual agreement by both employers and employees, the leave can be retroac-tively designated as FMLA leave (Rosseau, 2008, 103).
Who uses FMLA? As I discussed earlier in this paper, FMLA was intended to allow employees to balance their work and family life by taking reasonable unpaid leave for certain family and medical rea-sons. After it's inception, DOL realized that certain nontraditional families may not be covered by FMLA. With the clarification of the terms "son and daughter", DOL has ensured that an em-ployee who assumes the role of caring for a child receives the same parental rights as others re-gardless of the legal or biological relationship (Smith, 2010, 13). Now, nontraditional families, including families in the lesbian-gay-bisexual-transgender community, have parental rights whereas often they have been denied leave to care for their loved ones (Smith, 2010, 13).

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