Family and Medical Leave Act

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The Family and Medical Leave Act (FMLA) of 1993 requires covered employers to grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:[1]

  • for the birth and care of the newborn child of the employee;
  • for placement with the employee of a son or daughter 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 serious health condition.

Regulations explain that the purported purpose of the FMLA is to satisfy the "needs of the American workforce and the development of high-performance organizations," 29 C.F.R. § 825.101, by "balanc[ing] the demands of the workplace with the needs of families ... in a manner that accommodates the legitimate interests of employers," 29 U.S.C. § 2601(b)(1),(3).

Covered employer

An employer covered by FMLA is any person engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Employers covered by FMLA also include any person acting, directly or indirectly, in the interest of a covered employer to any of the employees of the employer, any successor in interest of a covered employer, and any public agency. Public agencies are covered employers without regard to the number of employees employed. Public as well as private elementary and secondary schools are also covered employers without regard to the number of employees employed.[2]

In Engelhardt v. S.P. Richards Co., 472 F.3d 1, 5-6 (1st Cir. N.H. 2006), the First Circuit explained that "the 50-employee exception as a threshold protecting smaller businesses from the onerous requirement of keeping an unproductive employee on the payroll in the form of redundant or absent employees, going without an employee for up to twelve weeks, or both" (citing Papa, 166 F.3d at 942, which observed that the 50-employee rule protects small businesses from, in the words of the Engelhardt decision, "from the financial costs of compliance with employment laws.")

In that case the issue arose whether a subsidiary operated as an integrated unit with a larger affiliate, in order to overcome the 50-employee test. To make that determination, the Engelhardt court explained the 75-mile test:

'[t]he 75-mile distance is measured by surface miles, using surface transportation ... by the shortest route from the facility where the eligible employee needing leave is employed.' 29 C.F.R. § 825.111(b). Thus, the 75-mile rule protects those employers (and their employees) whose businesses require separate worksites from the cumbersome requirement of relocating or commuting over large distances to cover for an employee on leave. Moreover, the 75-mile requirement prevents companies from establishing separate worksites in order to circumvent obligations under the FMLA and other labor rules. This is analogous to the determination that a multi-building or multi-facility campus is a single worksite if the facilities 'are in reasonable proximity, are used for the same purpose and share the same staff and equipment.' 29 C.F.R. § 825.111(a)(1)

The Engelhardt decision held that the subsidiary was not subject to the FMLA.

Notice required by employee

An employee must provide the employer at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or of a family member. If 30 days notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable. For example, an employee's health condition may require leave to commence earlier than anticipated before the birth of a child. Similarly, little opportunity for notice may be given before placement for adoption. Whether the leave is to be continuous or is to be taken intermittently or on a reduced schedule basis, notice need only be given one time, but the employee shall advise the employer as soon as practicable if dates of scheduled leave change or are extended, or were initially unknown.

How to calculate the 12-week period

An employer is permitted to choose any one of the following methods for determining the ``12-month period in which the 12 weeks of leave entitlement occurs:

   (1) The calendar year;
   (2) Any fixed 12-month ``leave year, such as a fiscal year, a year 

required by State law, or a year starting on an employee's ``anniversary date;

   (3) The 12-month period measured forward from the date any employee's first FMLA leave begins; or,
   (4) A ``rolling 12-month period measured backward from the date an 

employee uses any FMLA leave (except that such measure may not extend back before August 5, 1993).

   (c) Under methods in paragraphs (b)(1) and (b)(2) of this section an employee would be entitled to up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected. An employee could, therefore, take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year. Under the method in paragraph (b)(3) of this section, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken; the next 12-month period would begin the first time FMLA leave is taken after completion of any previous 12-month period. Under the method in 

paragraph (b)(4) of this section, the ``rolling 12-month period, each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 1994, four weeks beginning June 1, 1994, and four weeks beginning December 1, 1994, the employee would not be entitled to any additional leave until February 1, 1995. However, beginning on February 1, 1995, the employee would be entitled to four weeks of leave, on June 1 the employee would be entitled to an additional four weeks, etc.

State Leave Laws

In addition to the FMLA above, there may also be applicable state laws giving employees the right to take leave without pay. For example, Oregon imposes a family leave requirement on employers of 25 or more employees:[3]

The Oregon Family Leave Act, passed by the 1995 Legislature, requires employers of 25 or more employees to provide their workers with job-protected leave to care for themselves or family members in cases of illness, injury, childbirth or adoption.

New Jersey also imposes a family leave requirement under its Family Leave Act:

Family leave" means leave from employment so that the employee may provide care made necessary by reason of:
(1) the birth of a child of the employee;
(2) the placement of a child with the employee in connection with adoption of such child by the employee; or
(3) the serious health condition of a family member of the employee.

N.J. Stat. § 34:11B-3 (2012).


  2. See Sec. 825.600.

See also