THE FAMILY AND MEDICAL LEAVE ACT (FMLA)
Background of FMLA
In the early half of the 20th century, women were generally considered to be transitory workers.
It was presumed that they would remain in the workforce only until such time as they would get
married and start a family. However, during World War II, a large number of women entered the
workforce in order to compensate for the lost income of their husbands and to lend assistance to
the war. After the war was over, a sizeable number of women continued to participate in the
labor field, and perceptions toward their participation in the workforce began to steadily shift.
Employers and policymakers have been obliged to confront the issue of pregnancy while
working because there are now more women participating in the labor sector. In the early half of
the 20th century, women were generally considered to be transitory workers. It was presumed
that they would remain in the workforce only until such time as they would get married and start
a family (A. SHOLAR, 2022).
In the 1960s, as the second wave of feminism was beginning to gain momentum in the United
States, there was a concomitant shift in public policy about pregnant women. The Equal
Employment Opportunity Commission (EEOC) drafted guidelines in 1972 that mandated
employers to treat disabilities resulting from pregnancy just as they treated other temporary
disabilities. These disabilities included things like miscarriage, abortion, childbirth, and
recovery. In a similar vein, the Pregnancy Discrimination Act (PDA) of 1978 amended Title VII
of the Civil Rights Act of 1964 to make it illegal to discriminate against someone because they
are pregnant, are about to give birth, or have a medical condition that is related to pregnancy.
However, given that the PDA does not allow for paid leave to be taken in order to care for a
newborn child, it was necessary for many women to withdraw from the labor force after giving
birth. As a consequence of this, activists started focusing the majority of their efforts on the
passing of a family leave measure (A. SHOLAR, 2022).
In its earliest iteration, the Family and Medical Leave Act (FMLA) of 1984 (also known as the
Family Employment Security Act or FESA) allowed for up to twenty-six weeks per year of job-
protected leave that was unpaid. This leave could be taken to care for a new child, an ailing
child, a disabled spouse, or the employee’s own disability. The majority of the activists desired
paid leave, but they were concerned that the measure to provide it would not pass. Even though
the Family and Medical Leave Act (FESA) was never formally presented in Congress, it did start
a legislative conversation about family leave and laid the groundwork for subsequent laws. The
Parental and Disability Leave Act, sponsored in 1985 by Representative Patricia Schroeder (D-
CO), required twenty-six weeks of leave to care for a sick kid or the employee’s own temporary
disability, as well as eighteen weeks of unpaid, job-protected leave for new parents. Only two
House subcommittees were able to pass the bill before it came to a standstill (A. SHOLAR,
2022).
The Parental and Medical Leave Act was the new name given to a new family leave measure
when it was proposed in the 1986 legislative session. Republicans exerted pressure on the
legislation’s revision, which increased the size of covered businesses from five to fifteen
employees, set eligibility requirements at 500 hours or three months of employment, and
increased the amount of time available for either parental or medical leave to 36 weeks over a
two-year period. The American Association of Retired Persons successfully fought to include
extended coverage that would enable workers to take time off in addition to caring for a child to
care for a spouse or elderly parent. That’s why the bill’s name underwent one more name change,
becoming the Family and Medical Leave Act in June 1986. Between the years 1986 and 1990,
politicians continued to argue over the specifics of the Family and Medical Leave Act (FMLA),
reaching concessions over the extent of the benefits and the qualifications necessary to be
eligible for leave. The bill was ultimately approved by the House of Representatives in May of
1990, and the Senate did the same the following month. However, on June 29th, President
George H. W. Bush exercised his power to veto the bill. He said in a written statement that he
was in favor of family leave, but only on the condition that companies be permitted to
voluntarily provide it for their employees (A. SHOLAR, 2022).
The following year, the House of Representatives voted to approve an updated version of the
Family and Medical Leave Act (FMLA) that included stricter guidelines for the authorization of
leave. However, supporters of the law came to the realization that they still did not have enough
votes to override the veto that was predicted, so they made the decision to temporarily halt all
legislative activities. They restarted their efforts in 1992 with the expectation that they would be
able to persuade Bush to sign the measure under pressure, which would win him the support of
middle-class families in the upcoming presidential election. But Bush did the same thing he did
in 1990, which was to veto the law. In a further written statement, President Bush expressed both
his support for family leave and his conviction that the Family and Medical Leave Act (FMLA)
would be detrimental to the economy. After that, he proposed an idea to Congress, which was
that there should be a tax credit for companies that gave their employees gave family leave. Bill
Clinton, on the other hand, who was running against him, touted his support for the FMLA. The
Family and Medical Leave Act (FMLA) was the first significant piece of legislation that
President Clinton signed into law after he took office in January 1993 (A. SHOLAR, 2022).
The Family and Medical Leave Legislation was not modified for the first time until after it had
been in effect for fifteen years, and the amendments that have been made to the act since then
have been rather minimal in comparison to what was anticipated. Workers who have a family
member serving in the armed forces are now eligible for longer periods of leave thanks to
amendments adopted in 2008 and 2009. The statute was changed once more in 2009 to reflect
the fact that the FMLA does, in fact, include a set of specialized regulations that govern the
manner in which eligibility is determined for airline pilots, flight attendants, and other crew
members working for airlines. The Department of Labor of the United States revised the
definition of "spouse" under the Family and Medical Leave Act (FMLA) in 2015. This change
was made to ensure that eligible workers who are married to someone of the same gender can
take FMLA leave to care for their spouse or another family member, regardless of where they
live (A. SHOLAR, 2022).
Coverage under FMLA
The Family and Medical Leave Act (FMLA) allows eligible employees of employers that are
covered by the law to take job-protected leave without pay for a variety of family and medical
reasons. Additionally, the FMLA guarantees that the employee’s group health insurance coverage
will continue under the same terms and conditions as if the employee had not taken leave.
Employees who meet the requirements are entitled to receive (2022):
i. A total of twelve workweeks throughout the year for the following reasons:
The birth of a baby and providing care for the infant during the first year after the baby’s
birth;
The adoption or foster care placement of a child with the worker, as well as the
employee’s providision of care for the newly placed kid within a year of the placement;
To look after the employee’s spouse, child, or parent who is afflicted with a serious
illness;
A debilitating illness that prevents the employee from carrying out the fundamental duties
of his or her position;
Any qualifying urgency arising out of the fact that the employee’s spouse, son, daughter,
or parent is a covered military member on "covered active duty;" or
ii. A total of twenty-six workweeks off over a single 12-month period in order to care for a
covered servicemember who is suffering from a serious injury or illness. The eligible
employee must be the servicemember’s spouse, son, daughter, parent, or next of kin in
order to qualify for this military caregiver leave benefit.
As highlighted by the US Department of Labor, the Family and Medical Leave Act (FMLA) was
created to assist workers in maintaining a healthy work-life balance by enabling workers to take
reasonable amounts of unpaid leave for a variety of family and medical-related reasons. In
addition to this, it aims to accommodate the lawful interests of employers while simultaneously
promoting equal employment opportunities for men and women. The Family and Medical Leave
Act (FMLA) applies to all public organizations, as well as all elementary and secondary
institutions, both public and private, and businesses that have at least 50 employees. If an
employee has worked for their current employer for at least 12 months, has logged at least 1,250
hours over the course of the previous 12 months, and works at a location where the company
employs 50 or more people within 75 miles, then they are eligible for leave (2022).
The FLSA rules for determining compensable hours of labor are applied to the issue of assessing
whether or not an employee has worked the required minimum of 1,250 hours of service. Time
missed from work owing to pregnancy difficulties can be deducted from the 12 weeks of family
and medical leave. Military family leave provisions, first added to the FMLA in 2008, provide
FMLA protections tailored to military families’ requirements. Employees at local educational
agencies are subject to a unique set of guidelines. FMLA is administered by the United States
Department of Labor; however, the Office of Personnel Management is in charge of FMLA
administration for the majority of federal employees (2022).
According to the Family and Medical Leave Act (FMLA), the phrase "parent" can refer to a
biological, adoptive, step, or foster father or mother, or any other individual who stood in loco
parentis to the employee when they were a minor. The federal Family and Medical Leave Act
(FMLA) does not cover an employee’s siblings, in-laws, grandparents, or other extended family
members unless those individuals served "in loco parentis" to the employee when the employee
was a minor. Non-family members can also be deemed to have stood in loco parentis for an
employee. This is a legal term that means the person was responsible for the employee’s day-to-
day care and financial support during the employee’s childhood. Under state family leave
regulations, the rules of some states provide for more extensive coverage and broader definitions
of family members. State family leave generally runs concurrently with FMLA leave in many
cases ("Who is a covered family member under the FMLA?", 2022).
For the purposes of family medical leave, the term of "family member" in some states also
encompasses grandparents, domestic partners, siblings, and others. When it comes to the next of
kin allowed to take the leave in order to care for a covered servicemember, "Next of kin" refers
to the closest blood relative, other than the covered service member’s spouse, parent, son, or
daughter, in the following priority order: blood relatives of the covered service member who
have been awarded legal custody of the covered service member by a court decision or
legislative provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins. This
priority order is used unless the covered service member has expressly stated in writing another
blood relative as his or her nearest blood relative for the purposes of applying for military
caregiver leave under the FMLA ("Who is a covered family member under the FMLA?", 2022).
Intermittent Leave or Reduced Leave Schedule
Intermittent FMLA refers to leave that is taken in accordance with the Family Medical Leave
Act (FMLA) for a single injury, but that leave is taken over the course of multiple, non-
consecutive time periods rather than one continuous period of time. In certain circumstances,
leave granted under the FMLA may be taken on an intermittent basis or in accordance with a
"reduced leave schedule," which calls for the employee’s typical daily or weekly work schedule
to be shortened. The employee is required to provide documentation indicating that intermittent
leave or reduced leave schedule is required due to medical reasons in order to qualify for this
leave, which is granted for a predetermined amount of time. When an employee suffers from a
significant health condition that prohibits them from performing their job duties or when
employees have family members who require care for a serious health condition, they are
eligible for intermittent FMLA leave. Spouse, children, and parents are all considered to be
members of the family. The provision of transportation services is included in the caregiving
services, which may take the form of either physical or emotional support, or both (Know, 2022).
Employees are permitted to use any accrued sick or vacation leave benefits simultaneously with
Family and Medical Leave Act (FMLA) leave. However, companies should never suggest to
employees that they use up all of their other leave options before choosing to take FMLA leave.
Employees should not be expected to use any sick or vacation leave that they have accumulated
while they are off work. In addition to FMLA leave, employers are permitted to take into account
absences brought on by claims for workers’ compensation or temporary disability. In order for an
employer to guarantee that an employee has used up all of their authorized FMLA leave, the
employer has the ability to retrospectively amend leave and reclassify leave as FMLA leave. If
an employee makes treatment plans without first discussing them with their employer, the
employer has the legal right to require the employee to meet with the medical practitioner about
alternative treatment plans (Know, 2022).
An employer may choose to voluntarily grant intermittent leave. An employee who wishes to file
a claim for intermittent FMLA leave is obligated to make a good faith effort to accommodate the
scheduling requirements of the employer in order to cause the least amount of disruption to the
business operations. Employees are required to submit their leave requests at least 30 days before
the day they would like their absence to begin, unless their inability to work comes on suddenly.
The FMLA recommends giving verbal notice no later than one or two business days after the
event that triggers the need for leave. In the event that the situation is unforeseeable, notice
should be given with as much advance notice as possible (Know, 2022).
NB: It is permissible for an employer to discipline or terminate the employment of an employee
who is out on FMLA leave as long as the employer can demonstrate that the discipline or
termination was not related to the employee taking leave and that it would have happened even if
the employee had not taken FMLA leave. In other words, the employer must demonstrate that
the discipline or termination was unrelated to the employee taking leave (Know, 2022).
Signs of Violation of FMLA
Some of the signs to look at for that your FMLA rights may be violated include ("Signs Your
Employer Is Violating Your FMLA Rights | Swartz Swidler", 2022):
Non-acknowledgement of a valid the request as that falling within the scope of the
FMLA.
Requirement to provide an excessively long notice period.
Approvals for the leave taking an unreasonable amount of time to be processed or
accepted, and other frustrations
Requirement to work while on leave
Re-assignment of work duties when one return from the leave
Victimization due to taking the leave
Some of the prohibited actions under the FMLA that may also constitute signs that you should
watch out for include (2022):
Refusing to grant leave under the FMLA for an employee who is qualified
Attempting to dissuade an employee from using their FMLA leave
Manipulating an employee’s work schedule in order to dodge obligations imposed by the
Family and Medical Leave Act
Counting FMLA leave as part of "no fault" attendance standards
Using an employee’s request for or use of FMLA leave as a negative element in
employment decisions such as hiring, promotions, or disciplinary actions.
What To Do If You Believe Your Employer Has Violated Your Rights
The Family and Medical Leave Act (FMLA) is administered and enforced by the Wage and
Hour Division for all private employees, employees of state and local governments, and certain
federal employees. The Wage and Hour Division is responsible for conducting investigations
into complaints. In the event that infractions cannot be resolved, the U.S. Department of Labor
has the right to initiate legal action in order to compel compliance. An employee also has the
option of initiating a private civil action against their employer in the event of a violation of their
rights. In most cases, the time limit for filing an allegation is two years counting backwards from
the date the infraction occurred (2022).
The Steps used to file a complaint with the Wage and Hour Division are (2022):
Step 1-Collect all the information you will need to file your complaint
Step 2- Determine the Method of Filing. You can reach the Division online
(dol.gov/agencies/whd) or give them a call at 1-866-487-9243.
Step 3-Cooperation with the Division. The Division will collaborate with you to find the answers
to your queries and decide whether or not conducting an investigation is the most appropriate
next step.
If investigation is conducted, it begins with the Division’s investigator meeting with the
employer and/or a representative of the employer, and then the investigator tours the employer’s
establishment. The next steps will involve undertaking employee interviews in private, going
through the employer’s records to check compliance, and lastly, there is a final meeting held
between the investigator and the employer and/or a representative of the employer to discuss any
violations that were discovered and how to fix them. The request for payment of back wages will
be made by the investigator if it is determined that employees are owed back wages (2022).
When to Speak to an Attorney
As advised above, you may bring a private civil action against your employer where you have
reason to believe that your rights have been violated. This may be done through use of an
attorney.
Bibliography
A. SHOLAR, M. (2022). The History of Family Leave Policies in the United States | The
American Historian. Retrieved 25 August 2022, from
https://www.oah.org/tah/issues/2016/november/the-history-of-family-leave-policies-in-
the-united-states/
B. (2022). Retrieved 25 August 2022, from https://www.dol.gov/general/topic/benefits-
leave/fmla
C. (2022). Retrieved 25 August 2022, from https://www.dol.gov/agencies/whd/f
D. Who is a covered family member under the FMLA?. (2022). Retrieved 25 August 2022,
from https://www.shrm.org/resourcesandtools/tools-and-samples/hr-
qa/pages/whoisacoveredfamilymemberunderfmla.aspx
E. Know, I. (2022). Intermittent FMLA: Everything You Need to Know. Retrieved 25
August 2022, from https://www.upcounsel.com/intermittent-fmla
F. Signs Your Employer Is Violating Your FMLA Rights | Swartz Swidler. (2022).
Retrieved 25 August 2022, from https://swartz-legal.com/signs-your-employer-is-
violating-your-fmla-rights/
G. (2022). Retrieved 25 August 2022, from https://www.dol.gov/agencies/whd/fact-
sheets/77b-fmla-protections
H. (2022). Retrieved 25 August 2022, from
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