The FMLA entitles eligible employees of covered employers to unpaid leave for specified family and medical reasons with the continuation of health insurance under the same terms as if the employee had not taken leave. FMLA protection includes the right to reinstatement to the same job upon return from the qualifying leave.
Eligible employees are entitled to up to twelve workweeks of leave in a twelve month period for:
- The birth of a child and to care for the newborn child within one year of birth
- The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement
- To care for the employee’s spouse, child, or parent who has a serious health condition
- To recover from a serious health condition that makes the employee unable to perform the essential functions of his or her job
If an employer violates the FMLA, an aggrieved employee can sue and if successful, may recover:
- Econmic damages including lost pay and benefits plus interest, or the cost of providing care to a seriously ill family member, plus interest;
- A penalty equal to twice the amount of your economic damages, unless your employer proves that it had a good faith reasonable basis for denying your claim;
- Reinstatement to your previous job; and
- Attorneys fees, expert witness fees and court costs.
Federal versus state family and medical leave provisions:
Federal
State Employer coveredPrivate Employers of 50 or more Employees in at least 20 weeks of the current or preceding year
Public agencies, including state, local, and Federal Employers
Local education agencies covered under special provisions
Anyone who directly employs 50 or more Employees
The state and any political or civil subdivision of the state and cities
No special provision for education agencies
Employees Eligible
Worked for Employer for at least 12 months - which need not be consecutive; worked at least 1,250 hours for Employer during 12 months preceding leave; and employed at Employer worksite with 50 or more Employees or within 75 miles of Employer worksites with a total of 50 or more Employees
Similar to Federal provision, including worksite proviso
Leave Amount
Up to a total of 12 weeks during a 12-month period; however, leave for birth, adoption, foster care, or to care for a parent with a serious health condition must be shared by spouses working for same Employer
Similar to Federal provision
Under separate statute, State Employees may receive up to 12-months leave for pregnancy, childbirth, or adoption, or care for newborn
No requirement that spouses share leave. Under separate statute, employers are required to provide a female employee affected by pregnancy, childbirth, or related medical condition the same benefits as provided employees on temporary disability (for a period of 6 weeks or less). An employee also is entitled to take pregnancy leave for a reasonable period of time not to exceed 4 months.
Type of Leave
Unpaid leave for birth, placement of child for adoption or foster care, to provide care for Employee's own parent (including individuals who exercise parental responsibility under state law), child under 18 or a dependant adult child, or spouse with serious health condition, or Employee's own serious health condition
Similar to Federal provision
Serious Health Condition
Illness, injury, impairment, or physical or mental condition involving incapacity or treatment connected with inpatient care in hospital, hospice, or residential medical-care facility; or, continuing treatment by a health care provider involving a period of incapacity: (1) requiring absence of more than 3 consecutive calendar days from work, school, or other activities; (2) due to a chronic or long-term condition for which treatment may be ineffective; (3) absences to receive multiple treatments (including recovery periods) for a condition that if left untreated likely would result in incapacity of more than 3 days; or (4) due to any incapacity related to pregnancy or for prenatal care
Similar to Federal provision
Health Care Provider
Doctors of medicine or osteopathy authorized to practice medicine or surgery; podiatrists, dentists, clinical psychologists, clinical social workers, optometrists, chiropractors (limited to manual manipulation of spine to correct subluxation shown to exist by x-ray), nurse practitioners, and nurse-midwives, if authorized to practice under State law and consistent with the scope of their authorization; Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, MA; any provider so recognized by the Employer or its group health plan's benefits manager; and any health provider listed above who practices and is authorized to practice in a country other than the United States
Medical physician, surgeon, or osteopathic physician certified by California or licensed in another jurisdiction
Intermittent Leave
Permitted for serious health condition when medically necessary. Not permitted for care of newborn or new placement by adoption or foster care unless Employer agrees
Leave may be taken in one or more periods not to exceed 12 weeks
Substitution of Paid Leave
Employees may elect or Employers may require accrued paid leave to be substituted in some cases. No limits on substituting paid vacation or personal leave. An Employee may not substitute paid sick, medical, or family leave for any situation not covered by any Employers' leave plan
For family care and medical leave, Employee may elect, or Employer may require, substitution of accrued vacation leave or other accrued time off or other paid or unpaid time off negotiated with the Employer
For Employee's own serious health condition (but not other purposes unless the Employer and Employee agree), Employee may use accrued sick leave
Reinstatement Rights
Must be restored to same position or one equivalent to it in all benefits and other terms and conditions of employment
Similar to Federal provision
Key Employee Exception
Limited exception for salaried Employees if among highest paid 10%, within 75 miles of worksites, restoration would lead to grievous economic harm to Employer, and other conditions met
Similar to Federal provision
Maintenance of Health Benefits During Leave
Health insurance must be continued under same conditions as prior to leave
Similar to Federal provision
Leave Requests
To be made by Employee at least 30 days prior to date leave is to begin where need is known in advance or, where not foreseeable, as soon as practicable
If due to a planned medical treatment or for intermittent leave, the Employee, subject to health care provider's approval, shall make a reasonable effort to schedule it in a way that does not unduly disrupt Employer's operation
If need for leave is foreseeable, Employee shall provide reasonable advance notice
Similar to Federal provision
Medical Certification May Be Required by Employer for:
Request for leave because of serious health condition
To demonstrate Employee's fitness to return to work from medical leave where Employer has a uniformly applied practice or policy to require such certification
Request for leave because of serious health condition
Employee's fitness to return to work from medical leave as long as practice of requesting a certificate is uniformly applied
Executive, Administrative, and Professional Employees
Such individuals are entitled to FMLA benefits. However, their use of FMLA leave does not change their status under the Fair Labor Standards Act (FLSA), i.e., an Employer does not lose its exemption from the FLSA's minimum wage and overtime requirements.
No specific provision