Know The Scope and What is Covered Under FMLA

The Family and Medical Leave Act of 1993 (FMLA) protects as many as 12 workweeks of unpaid leave every 12 months to qualified workers for serious family and medical reasons. The law also provides as many as 26 workweeks of unpaid leave within a 12-month period for a worker to tend to a significantly ill or injured immediate family hurt in the line of military duty.

In 2012, the US Department of Labor conducted surveys of both employers and workers in an effort to actually determine what is covered under FMLA and who is covered under FMLA in practice.

Scope of Coverage

To be protected by the FMLA, an employer must have a minimum of 50 workers all living within 75 miles. In the surveys, only 17 percent of worksites reported coverage under the FMLA and 30 percent said they were unsure. These uncovered and unsure worksites were small and covered employers tended to be larger.

Not all workers at covered worksites qualify, the surveys found. To be qualified a worker must work for a covered company, have 12 months of tenure with this company and have worked 1,250 hours in the previous 12 months, equal to approximately 24 hours per week. Just greater than 50 percent of all workers in the survey reported satisfying all of these conditions.

In studying who is covered by the FMLA, the DOL researchers concluded that increasing qualifications to smaller sized worksites would slightly raise eligibility. Presently, for a worker to be eligible, the FMLA requires that the company have 50 workers within 75 miles of the worker's worksite. Decreasing the cutoff to 30 workers would raise the eligibility from 59 percent to 63 percent and reducing it even more to 20 workers would boost it to 67 percent. Maintaining the 50 workers within 75 miles prerequisite, but reducing the hours of service prerequisite from an average of 24 per week to an average of 15 hours per week would raise eligibility from 59 percent to 63 percent, the researchers found.

Qualified workers could take up to 12 weeks of leave annually for FMLA-qualifying reasons, such as a severe health condition or to care for sick immediate family in need of significant and ongoing care. Workers with a new child, through birth, adoption, foster care, and deployment of the worker's family member to active military duty are also covered under the FMLA. Qualified workers might also take up to 26 weeks of unpaid time off in one 12-month period for a severe injury or illness of a family member in military service.

Thirteen percent of all workers took leave for an approved FMLA reason within the past year, the 2012 survey found. Rates of leave-taking were greater among those entitled to the FMLA than for those not qualified, 16 percent to 10 percent. Some of this variation may be caused by the FMLA, but some of the change is probably due to the factors affecting eligibility, such as company size or hours worked, the DOL researchers said. They added that it was also probable that some of this difference in rates would remain even without the FMLA.

In studying who is covered by the FMLA, the researchers found that 55 percent of leave taken is for the worker's own illness. Leave for new child or pregnancy, and for illness of qualifying relative is less typical, just 21 percent and 18 percent. Only 2 percent of leave was taken for other reasons, including military reasons.
Almost one-half of all leave events last 10 days or less and just 17 percent were greater than 60 days, the study found, with the distribution very similar across qualified and ineligible workers.

About two-thirds of all workers have heard of the FMLA, with a greater percentage of workers at covered worksites having been aware of the law as opposed to workers at uncovered worksites, 71 percent compared to 53 percent. Most workers know the reasons included for leave by the FMLA, but workers also seem to think that the FMLA is broader than it is, the researchers said.

Knowing What is Covered by FMLA

The FMLA ensures the rights of workers to come back to their pre-leave position or to an equal position, considered one comparable to their prior held position. However, the FMLA does not include a requirement that organizations supply any pay over the leave.

Even so, most workers receive some pay while, on leave, the DOL researchers found. According to the survey, 48 percent of respondents reported getting full pay and 17 percent got partial pay, usually but not solely through paid vacation leave, sick leave, or other accrued hours. Rates of full pay fell dramatically for leaves of over 10 days, 60 percent for leaves under 11 days or less and 40 percent for leaves of over 10 days. Most workers who took leave in the past year said that they came back to work because there was no longer a need to be out from work. Despite the getting of some pay, not being able to afford leave was the main reason for going back to work, the survey found.

Most covered worksites that are big enough to have qualified workers reported little difficulty adhering to the FMLA. However, larger worksites were more prone to report difficulty complying, with figures climbing to 3 percent for “very difficult” and 29 percent for “somewhat difficult” when the information was weighted by workers. In addition, 30 percent of employers said that the cost of providing the FMLA is rising. Few employers reported adverse effects of adhering to the FMLA, particularly when it came to profitability issues.

While there has been substantial worry expressed by some organizations concerning intermittent leave, worker reactions indicated that such leave is not standard, with only around 3 percent of workers taking any intermittent leave. Reports of unfavorable effects on business profitability and productivity due to intermittent leave were uncommon, the researchers said.

While the law has been around for over two decades, the DOL survey showed that there is still some confusion and misperceptions surrounding what is covered by FMLA and who is covered by FMLA. Employers should make a concerted effect to get as much information of to their employees as possible to clear up any confusion.

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