A Slow March toward Better Balance in the Workplace (Part V)

By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

Note: This article contains content adapted from lesson material written for APUS classes. This is the final article in a five-part series on the slow growth and evolution of federal laws that protect employee rights in the workplace.

In the earlier parts of this article, we looked at the role of the National Labor Relations Act (NLRA) in protecting workers’ rights to unionize, and the Fair Labor Standards Act (FLSA) and its pay provisions. Now, finally, we will examine the Family and Medical Leave Act (FMLA), the Affordable Care Act (ACA) and the application of these laws in the workplace.

The Family and Medical Leave Act (FMLA) in the Workplace

Following passage of the Fair Labor Standards Act (FLSA) in 1938, it would be another 55 years before American workers saw another piece of workplace legislation that so drastically affected their rights and protections. Between the 1930s and the 1990s, a fundamental philosophy shift occurred. Americans began to look at their jobs not as the reason for their existence, but instead as a necessary means of survival and support for other ambitions such as family and lifestyle.

Enter the Family and Medical Leave Act (FMLA) of 1993, President Bill Clinton’s greatest contribution to employment law reform. At its core, the FMLA requires certain covered employers to grant covered employees up to 12 weeks of unpaid leave for qualifying family and medical events and to provide them with a job upon returning. As implied in the preceding sentence, there are myriad caveats and exceptions to the FMLA rules.

First, the FMLA applies to all public agencies at local, state and federal levels. The law also applies to all private-sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. This includes time accrued through successive ownership of the employer in question.

In order to be eligible for FMLA leave, an employee must meet certain specific criteria:

• The employee must have worked for the employer in question for at least 12 months prior to the leave being sought.
• The employee must have worked at least 1,250 hours during the 12-month period immediately preceding the leave being sought.
• The employee must work at a location where at least 50 employees are employed or live within 75 miles of the work location.

Under FMLA, the following circumstances qualify for approved leave:

• The birth of a child and/or time to bond with a newborn child within one year of birth. Although this event naturally applies to mothers for maternity leave, it also applies to fathers for paternity leave as well.
• Adoption of a child and/or time to bond with the child within one year of placement with the employee.
• A serious condition that compromises the employee’s ability to perform his or her job.
• Care for the serious health condition of an immediate family member. Under FMLA, this includes spouses, children and parents. If an employee is next of kin to a military servicemember who is suffering a serious injury or illness, this would also be covered.
• Exigencies arising from the military service of an immediate family member. For example, if an immediate family member is deployed and the employee needs to care for children of the deployed family member, such an event would qualify.

An Employer May Request Medical Certification If an Employee Requests FMLA Leave

If an employee requests FMLA leave due to his or her own serious medical condition or due to that of a qualifying family member, the employer may request medical certification from a qualifying health care provider. In such an event, the employer must allow the employee 15 calendar days to obtain the certification.

It is important to note that workplace leave mandated under the FMLA is unpaid. Employers may choose to offer employees paid leave if they wish, but they are under no obligation to do so. The employer may also insist that the employee first use any paid leave accrued in accordance with other company benefits before taking unpaid leave. Incidentally, the unpaid nature of FMLA leave benefits is the subject of much political discussion because many other first-world countries today mandate some degree of paid leave for their workforces.

The employer is required to maintain any health insurance benefits offered to the employee during the term of FMLA leave. If the employee’s portion of premium expenses is normally paid through payroll deduction, the employer is permitted to insist upon direct payment from the employee during the leave in order to maintain the benefits. Other ancillary employment benefits, such as vacation accrual and corporate discounts need not be maintained, however.

Employees May Take Hours or Days as Necessary to Accommodate the Qualifying Event

An employee is not required to take all 12 allowed weeks at one time. Employees may take hours or days at a time, intermittently and as necessary to accommodate the nature of their qualifying event. A reduced-hours regular work schedule could also be arranged with the employer for regular periodic use of FMLA time.

At the conclusion of the leave, the job to which the employee is permitted to return must be either the same or an “equivalent” job. Equivalent jobs are those that are “virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.”

The FMLA prohibits retaliation against any employee who claims benefits under the law. However, if upon return from the qualified leave the employee cannot perform his or her job, or violates company rules or policies during the leave, the employer may legally choose not to reinstate him or her.

The list of FMLA provisions is long and complex. Employers should be intimately familiar with these details so that they don’t inadvertently deny any employees their federally protected right to FMLA leave.

Affordable Care Act (ACA)

Fast-forwarding another 17 years, the Affordable Care Act (ACA), commonly known as “Obamacare,” was passed in 2010. It is the most recent drastic change in law as it pertains to employment rights and privileges. Although the ACA does not exclusively pertain to the employment context — it mandates health insurance for all citizens notwithstanding employment status — its main effect is to require all employers with 50 or more employees to offer employer-sponsored medical insurance as an employment benefit.

Prior to the ACA, health insurance benefits were commonly used as a competitive advantage in attracting employees. However, providing health insurance previously was never a legal requirement, and the 2008 economic recession provoked many businesses to begin discontinuing such benefits in the interest of solvency.

The ACA is over 1,100 pages long and contains a plethora of provisions concerning covered employers, eligible employees, and the government subsidization and regulation of the health insurance industry. Additionally, the ACA is perhaps the most controversial legislation in modern political history. Members of Congress have attempted more than 50 times to repeal the act, but have failed due to insufficient support.

With that in mind, the future of the ACA is far from certain. However, employers should familiarize themselves with the ACA to ensure that their company is in compliance with all of its workplace mandates.

Employers in all industries would do well to study carefully all of these workplace laws in order to maintain a healthy and happy workforce, and to avoid unnecessary liability in employment.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.