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HAPPY BIRTHDAY, FMLA! My, How You’ve Grown.

by Erin Ebeler, Woods & Aitken LLP


For more information on FMLA, please note that Woods & Aitken and the AGC Nebraska Building Chapter is co-hosting a webinar on the interaction of FMLA and the Americans with Disability Act on March 6, 2013 at 1:30 p.m. To register for the webinar as a benefit of your AGC Nebraska Building Chapter membership, contact Jean or Vicki at agcnebuilders@windstream.net or 402-438-0400.


Signed into law on February 5, 1993, the Family Medical Leave Act (“FMLA”) is now 20 years old. Like other 20 year olds, the Act has grown and changed in a number of ways, with the most recent amendments to governing regulations going into effect just this year. Additionally, the U.S. Department of Labor recently released its latest survey results detailing employer and employee perceptions of FMLA and how it is being used. This article will briefly identify those changes and highlight some of the statistics revealing how FMLA leave is being used across the country.


Touted by President Clinton as a law that would prevent employees from having to choose between the jobs they need and the families they love, the 2012 survey results show that most leave taken under the FMLA is actually due to an employee’s own illness (57%). In comparison, leave for pregnancy or a new child accounts for approximately 22% of FMLA leaves, and caring for a qualified relative accounts for 19% of leaves. Notably, in 2008, President Bush signed into law amendments to the FMLA pertaining to leave for military reasons; however, leave taken for such purposes is relatively rare (less than 2%). For additional statistics regarding the use of FMLA leave, see http://www.dol.gov/asp/evaluation/fmla/FMLATechnicalReport.pdf.


Generally speaking, FMLA is going to apply to an employee (1) who works for a company that employs fifty or more employees during each of 20 or more calendar workweeks in either the preceding or current calendar year within 75 mile radius of the employee’s worksite; (2) who has been employed for at least 12 months by the employer of whom leave is being requested (notably, this 12 month period does not have to be consecutive); and (3) who has performed at least 1,250 hours of service with such employer during the previous 12-month period. As of the most recent survey, approximately 59% of employees were eligible for FMLA leave under these criteria.


Over the past several years, though, there have been numerous attempts and discussions pertaining to further expanding the reach of FMLA. As noted above, in 2008, leave types relating to the military service of a family member were added. Additionally, there have been a number of discussions about whether FMLA should be expanded by either (a) reducing the number of employees who must be employed within 75 miles of a job-site or (b) reducing the number of hours an employee must work for an employer before becoming eligible. The survey shows that decreasing the required number of employees to 20 would increase the percentage of covered employees to 67% and that decreasing the number of hours required to be worked by an employee to 780 hours would increase eligibility to 63%. Additionally, some states such as California and New Jersey have enacted mini-FMLAs, which require periods of paid leave. Representative Lynn Woolsey [D-CA6] proposed amendments to the FMLA in 2011 that would have required, among other things, paid sick leave and expanded the qualifying conditions for which leave could be taken to include addressing acts of domestic violence, sexual assault, and stalking (this bill died in committee).


In short, although the FMLA is now 20 years old, it is clear that law makers are not and have not been shy of trying to find ways to expand the reach of this law. Most recently, the Department of Labor amended a number of FMLA regulations to address a number of issues. Topics addressed by the recent amendments include those that relate to military-related leaves, “clarify” a number of regulations pertaining to the current FMLA regulations, add special rules pertaining to airline flight crews, and specify that an employer’s record-keeping practices under the FMLA must comply with the confidentiality requirements of the Genetic Information Non-Discrimination Act (“GINA”).


The amendments are generally perceived to put a greater obligation on the employer and broaden the amount of time that an employee may take as FMLA leave. For example, under the 2008 regulations, where it was physically impossible for an employee to start or end work mid-way through a shift, the entire period the employee was forced to be absent would be counted against the employee’s FMLA leave usage. With regard to the 2013 amendments, the DOL states that it added “clarifying” language that states the physical impossibility provision is to be utilized in “only the most limited circumstances” and that the employer is responsible for restoring the employee to the same or equivalent position as soon as possible. Such “clarifications” are indicative of the broad view taken by the DOL with regard to FMLA regulations.


For more information on FMLA, please note that Woods & Aitken and the AGC Nebraska Building Chapter is co-hosting a webinar on the interaction of FMLA and the Americans with Disability Act on March 6, 2013 at 1:30 p.m. To register for the webinar as a benefit of your AGC Nebraska Building Chapter membership, contact Jean or Vicki at agcnebuilders@windstream.net or 402-438-0400.