What New Parents Need to Know About the Family Medical Leave Act

When you’re expecting a baby, your to-do list gets longer and longer as the trimesters pass. If you work outside the home, it’s a good idea to put “learn more about the Family Medical Leave Act” near the top of the list.

Adopted in 1993, the Family Medial Leave Act (FMLA) guarantees leave from work without pay for the birth or adoption of a baby, the care of a close relative who is seriously ill or the care of the workers’ own serious illness.

“The law is a great protection to workers across the country,” says Victoria Lipnic, U.S. Assistant Secretary of Labor for Employment Standards. “With both parents working, there is a lot of pressure when it comes to taking time to look after a new baby or a family member. This act helps make that whole process much easier.”

More than six in 10 American workers are covered and eligible under the FMLA, according to a 2000 survey by the U.S. Department of Labor. Data released in January 2001, indicates that more than 35 million such workers had benefited from taking leave for family and medical reasons since 1993. Between 1993 and 2001, the act protected more than 1,250,000 workers in North Carolina.

The law requires employers of 50 or more employees to give up to 12 weeks of unpaid, job-protected leave to employees. Lipnic encourages women who work at smaller companies to talk with their supervisor or human resources officer to learn about maternity leave policies. Employees who will need to take FMLA leave should talk with their employer as soon as they know the leave is needed, says Joshua Krasner, a labor law attorney with Maupin Taylor P.A. in Raleigh.

“The earlier that everyone is informed, the better it will be for everyone,” he says.

Under the FMLA, an eligible employee is entitled to the unpaid leave during a 12-month period. Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months and have worked at least 1,250 hours over the previous 12 months.

Employers can select one of four options for determining the 12-month period, Krasner says. Commonly, they use a rolling 12-month period measured backward from the date an employee uses FMLA leave. Also, the employer can count leave taken due to pregnancy complications against the 12-week FMLA leave for the birth and care of the child.

Although the law only requires unpaid leave, it permits an employee to elect — or the employer to require the employee — to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. The FMLA also requires that employees be restored to the same or an equivalent position. Employers cannot use the taking of FMLA leave as a negative factor in employment actions such as hiring, promotions or disciplinary action.

“Some employers often run into problems by trying to bring an employee back on another shift but with the same job,” Krasner says. “The employee probably won’t see a third shift job as the same as a first shift job when they return.”

Also if an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work. The FMLA leave may not be counted against the employee. On the other hand, FMLA does not require that employees on FMLA leave be allowed to acrue benefits or seniority.

It is the employer’s responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by the employee. Leave may not be designated as FMLA leave after the leave has been completed and the employee has returned to work except under special circumstances.

Although the FMLA applies to the birth or adoption of a child, it also can apply to the care of immediate family members such as a spouse, children and parents. The term “parents” does not include parents-in-law. Children age 18 or older are not included in the FMLA unless they are “incapable of self-care” because of mental or physical disability that limits one or more of the “major life activities.”

Many parents who qualify for the leave under the act don’t take the entire leave because they can’t afford to go without pay, Krasner says. For workers who must take essential time off for family leave, the results can be financial hardship. According to the Commission on Family Leave, nearly one in 10 workers who take unpaid family leave are actually forced onto public assistance to make ends meet.

North Carolina passed a similar family leave protection act. In this state, all employers also are required to offer leave up to four hours per year for parents to be involved in school events or activities. Although no states require paid family leave, many states are exploring proposals to establish paid leave systems through the state’s unemployment insurance programs or other programs.

Lipnic says she does not see any upcoming changes in the FMLA.

“The law has been around for 10 years and has provided a great deal of benefit to many families,” she says. “I don’t see any changes being made in the law in the near future.”

Need More Info?

A variety of Web sites offer additional information about FMLA. Log on and find out more:

U.S. Department of Labor site: www.dol.gov

N.C. Department of Labor site: www.nclabor.com