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Family and Medical Leave Act - FMLA

The Family and Medical Leave Act Current State of the Law and New Issues Confronting Illinois Employers

The Family and Medical Leave Act, which took effect in mid-1993, is still heralded as the most sweeping federal law to help workers with the precarious balance between job and family. But a closer look at today's workplaces reveals that the law has not delivered what it promised: a practical solution for employees to deal with personal demands imposed by sick parents and kids or by their own serious illnesses.

The firm of Bellas & Wachowski Attorneys at Law has handled some significant cases for violations of the FMLA including a class action case against Motorola for a systemic violation of the FMLA. Also, one of the leading cases under the FMLA was handled by George Bellas. Breneisen v. Motorola, in which the 7th Circuit Court of Appeals (Case No. 05-032, 1/15/08), held that the District Court erred in granting defendant-employer's motion for summary judgment in an FMLA action which alleged that Motorola had penalized plaintiff by placing him into inferior job in punishment for taking FMLA leave. Motorola conceded that plaintiff was not restored to same position when he returned from leave of absence, and although plaintiff received same pay and benefits in new position, plaintiff presented evidence that new position had less prestige and different responsibilities. The case has been remanded to the District Court in Rockford for trial on the FMLA claim.

Who the Law Applies to

The FMLA applies to any employer in the private sector who is engaged in commerce, and who employs 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.

All public agencies (state and local government) and schools are covered under the FMLA. These public agencies and schools, however, do not have to meet the 50 employees requirement applicable to private sector employers.

If an employer has more than one location, the FMLA provides a special rule for counting employees for purposes of determining whether the FMLA is available to these employees. An employer may be subject to the FMLA if the employer has 50 or more employees within 75 miles of the employee’s location.

In order to be eligible for FMLA leave, an employee must be employed by a covered employer; must have worked at least 12 months for the employer (non-consecutive months are permitted); and must have worked at least 1,250 hours over the previous 12 months.

What the Law Provides

Under the FMLA, an employee is eligible for up to 12 weeks of unpaid leave during a year's time for the birth or adoption of a child, family health needs or the employee's own health needs. Sometimes, computations make things different than they seem. An employer can count accrued paid benefits--vacation, sick leave and personal leave days--toward the 12 weeks of leave allowed under the FMLA. An employee who uses three weeks of vacation and another week of sick leave, for example, is left with only eight weeks of protected job leave under the FMLA. To ease the strain, however, some employers do not include paid leave time as part of the family leave allotment.

The employer must not only allow an employee to take the leave, but also must allow the employee to return to the same or a similar position to the one he or she held before it. And during the leave, the employer must continue to make the same benefit contributions, such as paying insurance policy premiums, as the employee was receiving before going on leave.

However, seniority and pension benefits need not accrue during an employee's leave. Employers who violate the Act, including its provisions against retaliating against those who take advantage of its protections, may be required to pay backpay, damages, attorneys' and expert witnesses' fees--and importantly, for the cost of up to 12 weeks of caring for a child, spouse or parent. Just over half the states have also enacted their own leave laws; most of them nearly mirror the federal provisions.

Early Reports are Inconclusive

Before the FMLA took effect, critics blasted that the law portended doom for small businesses forced to keep unproductive workers on staff. Supporters heralded the measure as the first real taste of family values palatable to workers of every political stripe.

But in its short history, the law has delivered neither gloom nor glory. No one is quite sure why--and workplace experts, for once, have avoided the issue of why no one showed up for the revolution.

In February of 1998, on the FMLA's fifth anniversary, Secretary of Labor Alexis Herman declared victory: "The past five years have proven that this law has worked exactly as it was intended," she said. "Millions of American workers have gained precious time to be with their families during medical emergencies. At the same time, their employers have not experienced the effects that some who opposed the law feared."


The Department of Labor, responsible for enforcing the law, investigated 6,000 FMLA complaints during its first five years or so in existence. About 90% of those were settled, usually after a quick call from the DOL explaining how to comply. Agency officials claim they have completed investigating and acting on about 95% of the complaints filed; it has taken legal action for violations in only 16 cases.

But there are also other, more confounding numbers: The median length of time away from work for those taking leave under the law in its early years was 10 days. And, most tellingly, only about 3.6% of all employees actually took leave under the law.

So reality seems to show that it is not errant employers who are responsible for the law's lackluster effect. The key fact is that the leave is unpaid; many workers simply cannot afford to take advantage of it. Among women who took time off for family care during the FMLA's first 18 months, one in eight was forced to go on public assistance to make ends meet.

Interestingly, a number of employees say they would hesitate to take the proffered leave because of more subtle psychological pressures: they fear that others would view them as less serious workers. In a workplace that gives the greatest glories to those who put in the most hours, perceived slackers do not make the grade.

New Issues

While the FMLA and similar state laws provide a start, the solution to family leave problems will not likely come from legislation. Some employers, mindful of the gap between legal rights to leave and reality help employees juggle work and family responsibilities in various ways, including:

  • allowing employees to work part-time or to share a job
  • allowing employees to put in some of their work hours at home
  • allowing flexible onsite work hours, and
  • providing additional assistance to employees, such as counseling and seminars on work and family issues.

If you have an issue which is covered under the FMLA - or any other employment issue, contact us for more information. 800.825.9260.