Rights and Responsibilities Under
The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) of 1993 requires any employer with 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons. After 12 months of employment, an employee becomes eligible for FMLA leave. The FMLA also requires that an employee must work at least 1250 hours during the 12 months immediately before FMLA leave.

An employee may request FMLA leave for:

1. the birth or adoption of a child;
2. care of a newborn child;
3. care of a spouse, child, or parent with a serious health condition; or
4. an employee's serious health condition.

Generally, a serious health condition means a condition requiring inpatient care, a condition requiring continuing treatment by a health-care provider, a condition resulting in incapacity of more than three days, or a chronic condition.

During a FMLA leave, the employer must continue to provide the employee with group health-care coverage. Upon completion of the FMLA leave, the employer must return the employee to the same job or to another job with equivalent pay and benefits.

Under certain circumstances, an employee may take intermittent leave or leave based upon a reduced work schedule. When an employee takes leave because of the birth or adoption of a child, that employee may take an intermittent or reduced-schedule leave, but only if the employer agrees.

When medically necessary, an employee may take intermittent leave or reduced-schedule leave to care for a sick family member or for an employee's own serious health condition. In such cases, the FMLA requires the employee to provide certification by the health-care provider attesting the requested leave is medically necessary, as well as the expected duration and schedule of the leave.

How can an employer control the use of intermittent leave?

An employer can take four steps to control the use of intermittent leave:

1. transfer to an alternate position;
2. reclassification;
3. require cooperative scheduling of planned medical treatment; and
4. require medical certification.

Transfer to an Alternate Position

If an employee seeks intermittent or reduced- schedule leave that is foreseeable based on planned medical treatment, the employer may require the employee to transfer temporarily to an alternate position for which the employee qualifies. The employee must receive equivalent pay and benefits, but the employer may alter responsibilities. The employer must take care not to discourage an employee from taking leave, and should transfer an employee only to better accommodate the employee's need for recurring periods of leave.

Reclassification

An employer may reclassify an employee who seeks intermittent leave as part-time. If this option is chosen, the employee must continue to receive full-time pay and benefits, even if part-time employees are not eligible for benefits.

Once the employee's need for intermittent leave ends, the employer must return the employee to his or her pre-leave position, or restore the employee to full-time status.

Requiring Cooperative Scheduling of
Planned Medical Treatment

An employee taking foreseeable leave based on planned medical treatment is expected to consult with his or her employer, prior to scheduling the treatment, to create a schedule that best suits their respective needs. If the employee fails to do so, the employer may initiate discussions with the employee and require him or her to make reasonable effort to structure the leave in a way that minimizes the disruption to the employer's business. This may include scheduling treatment during nonworking hours or during days or times that are less burdensome to the employer.