the need for FMLA leave, and are employed at a worksite where the employer employs at least 50 people within 75 miles. 1 In determining if the business meets the 50 or more criteria, the employer should include those people whose names appear on the employer’s payroll, including part-time employees, those currently on approved leaves of absence or disciplinary suspensions and jointly owned (e.g., leased) employees. Employees on long term or indefinite layoff are not counted. Employees whose work sites are outside the United States, its territories or possessions are not covered for purposes of determining employer coverage nor are they protected by FMLA. Employers must grant leave to employees in connection with the birth, placement or adoption of a child, to care for a spouse, minor or incompetent child or parent who has a serious health condition, or for their own serious health condition that makes them unable to perform their job. A serious health condition according to Regulations promulgated by the U.S. Department of Labor (DOL), includes an illness, injury, impairment, or physical or mental condition that involves either hospital care; absence plus continuing treatment; pregnancy; a chronic condition requiring treatment; permanent long-term supervision; or multiple treatments (non-chronic conditions). Note that many courts, including the Eighth Circuit Court of Appeals, have been asked to interpret those Regulations; as those courts have reached varying conclusions, anyone with questions in this area is urged to seek the advice of counsel. Employees may be required to provide advance notice of the leave and medical certification as established by the FMLA and Regulations of the U.S. Department of Labor. Editor’s note: In March 2015, DOL’s final rule went into effect and states that of the term “spouse” will be defined using the “site of celebration or marriage” rather than the “site of domicile or residency” rule. What this means is that all lawfully married couples will be recognized for purposes of qualifying for FMLA leave to care for one another based on where they were married- or the “site of celebration or marriage” - rather than where they currently live. The “site of celebration” rule has been adopted by the IRS and the DOL, respectively for purposes of tax filing and ERISA-qualifying benefits. The primary effect of the rule is that employers in states where same-sex spouses to care for one another state or jurisdiction where same-sex marriage was legal at the time of the marriage. (29 CFR Part 825) The FMLA requires all covered employers to comply with notification requirements, including posting information on the FMLA in a general location where all employees would have an opportunity to see it, providing general written information regarding employee rights under the FMLA to all employees, either in an employee handbook or as a handout, and providing all employees requesting or on FMLA leave with written notice detailing the specific obligations and expectations of the employee, and the consequences of failing to meet such obligations. Although the law does not require the employer to provide paid leave, in some cases certain kinds of paid leave may run concurrently with FMLA leave. During the leave, employers must maintain group medical insurance coverage under conditions the employer would have provided coverage had the employee continued working. (Employers may in some cases recover premiums paid for maintaining health coverage from employees who do not return to work following the leave.)
1 The U.S. Department of Labor’s Regulations on the FMLA are at 29 CFR Chapter 825.
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