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FMLA • 12 weeks of unpaid leave during a 12 month period • At the end of the leave, employees are to be reinstated to the same or equivalent (not similar!) position • Statutory purpose is?
SEC. 2. FINDINGS AND PURPOSES. (a) FINDINGS.--Congress finds that-- (1) the number of single-parent households and two-parent households in which the single parent or both parents work is increasing significantly; (2) it is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions; (3) the lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting; (4) there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods; (5) due to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men; and (6) employment standards that apply to one gender only have serious potential for encouraging employers to discriminate against employees and applicants for employment who are of that gender.
b) PURPOSES.--It is the purpose of this Act-- (1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition; (3) to accomplish the purposes described in paragraphs(1) and (2) in a manner that accommodates the legitimate interests of employers; (4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and (5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause.
Family and Medical Leave Act Who’s covered: Workers have to be employed a year or more All private and public employers with 50 or more employees working within a 75 mile radius An employee must have worked at least 1,250 hours in the preceding year (DOL rules state employers must notify those who are ineligible)
Exemptions from FMLA • Highest paid 10% • Teachers and instructors • Both spouses working for same employer (pregnancy leave is covered) • Employer may include paid time off in the 12 week calculation • Employer may demand benefits be repaid if employee does not return to work
Policy Issues • U.S. social legislation is generally directed at wage earning workforce. Even public assistance has a work component. • FMLA is an example of legislation that is struggling to keep up with social evolution. • Labor force participation by women has skyrocketed. • Unpaid leave is a reflection of family care typically regarded as women’s work. Is it? • Opportunity cost is an important econometric; it is assumed that women earn less than men so it costs a family less to have women at home providing care • Is there bias against childless couples? • What about unmarried couples?
FMLA is not used very often… • about 2% of all covered employees • a survey by the US commission on Leave found about 42% of employees didn’t know about FMLA
Leave Requests • Notice requirement is 30 days for “foreseeable medical treatment” but there are no penalties for failure of the employee to notify within this period. • Medical emergencies do not require employer approval but must be serious, i.e., overnight hospitalization or 3-day absence from work. • Once requested, the employer must notify the employee that leave being taken will be counted toward FMLA leave • Employer may request certification. • Employees need not specifically mention FMLA • Absence under FMLA can’t be counted against “perfect attendance” awards!
Coverage extends to • A serious health condition if you cannot do your job. • Care for a serious health condition of your spouse, children or parents • Birth, adoption, or foster care placement for children.
Make whole remedies • Recovery of lost wages and benefits • Reimbursement of cost of providing family care • Attorney’s fees and witness costs • Interest • Reinstatement or promotion • Some orders for liquidated damages under FMLA (double the amount owed)