The following is a summary of an employee's potential rights under the Family Medical Leave (FMLA) provisions of state and federal law. It is important to recognize the benefits available under each law because if an employee qualifies for both state and federal leave, he/she is entitled to whichever law gives him/her the most benefit.

Comparison of State and Federal FMLA

• Federal FMLA generally applies to all employers engaged in commerce (or in any industry or activity affecting commerce) who employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
• State FMLA generally applies to private employers that employ 15 or more employees at one location; the State and its agencies; and any city, town or municipal agency that employs 25 or more employees.

B. How much leave can an employee take?

• Federal FMLA entitles an employee to 12 weeks of leave within a one year period (there are some exceptions for a husband and wife employed by the same employer).
• State FMLA entitles an employee to 10 consecutive weeks in any 2 year period.

C. Which employees qualify for leave?

• Under federal law, leave is unpaid. Leave may be intermittent for an employee's serious health condition or to care for a spouse, child or parent with a serious health condition.
• Under State law, leave is unpaid. There is no provision for intermittent leave.

E. Under what circumstances is leave available?

• Under federal law, leave is available for 1) a serious health condition of the employee which prevents the employee from performing the essential functions of his or her job; 2) when the employee is needed to care for family member (spouse, children, parent) with a serious health condition; or 3) the birth of child and care of newborn, or placement of child with the employee for adoption or foster care.
• Under State law, leave is available for 1) a serious health condition of the employee; 2) the birth of the employee's child; 3) the placement of a child age 16 or less with the employee in connection with the adoption of the child by the employee; 4) a spouse, child, or parent with a serious health condition; or 5) the donation of an organ of that employee for a human organ transplant.

F. What benefits is an employee entitled to during leave?

• Under federal law, you must maintain health care benefits under any group health plan during leave on the same conditions as coverage would have been provided if the employee was working. So, if you paid a portion of the employee's health insurance prior to the leave, you must continue to do so during the leave. Likewise, if the employee paid a premium prior to the leave, he or she must continue to do so during the leave period.
• Under State law, you are not obligated to continue making payments on behalf of the employee, even for health benefits and even if you made such payments prior to the leave. However, you must give the employee the option of continuing benefits at his/her own expense.

Other FMLA Reminders

• The federal FMLA also applies to job applicants. The First Circuit Court of Appeals has held that the FMLA's language supported its application to prospective employees, based on its reference to discrimination against an "individual" and the Act's requirement that notices about FMLA be posted in areas accessible to job applicants. An applicant, therefore, could bring a retaliation claim under the FMLA if, for instance, he or she had been employed with that employer before and was not rehired because of his or her protected absence.
• According to EEOC Regulations, leave taken after the birth or placement of a child for adoption or foster care may be taken intermittently or on a reduced schedule only if you agree. Your agreement is not needed for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition.
• With some exceptions, you may require that employees use certain accrued paid leave, such as vacation time, personal leave, or sick time, for the unpaid leave provided under the Act.
• The time that reservists and National Guard members would have worked if they had not been called for military service counts toward the 12-month and 1,250-hour federal FMLA eligibility requirements.
• There is no reasonable accommodation provision under the FMLA. An employee must be able to perform the essential functions of his or her regular job at the end of the leave period; however, do not forget that other laws, such as the ADA, may then offer protection if the employee is unable to do so.
• The federal FLMA regulations define "spouse" to mean a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides. "Parent" means a biological parent or a person standing in place of the parent in certain circumstances. It does not include a parent- in-law.
• An employee whose federal FMLA rights are violated could be awarded wages, benefits, interest, liquidated damages, attorneys' fees and costs, reinstatement and promotion. In those cases where no actual wages or benefits were lost, the employee could recover actual monetary losses sustained as a result of the denial of leave, such as the cost of providing care for a spouse, up to a sum equal to 12 weeks of wages or salary for the employee. The employee could also be awarded liquidated damages if the employer cannot demonstrate it acted with good faith. The statute does not specifically authorize compensatory damages, such as those for emotional distress, or punitive damages.
• Under state law, the court can enjoin any act or practice that violates the FMLA and may order any other necessary or appropriate equitable relief. The court may also order the employer to pay as liquidated damages to the employee the amount of $100 per day for each day the violation continues.

This Newsletter is designed to provide information of a general nature only and is not intended to replace or provide professional legal advice.