Overview of Federal and State Family and Medical Leave Laws

CODE: GBN-R1

Maine School Administrative District No. 31

OVERVIEW OF FEDERAL AND STATE FAMILY AND MEDICAL LEAVE LAWS

INTRODUCTION

This overview summarizes major provisions of the federal and state family and medical leave laws, but is not intended as a

comprehensive reference. Its purpose is to provide school employees basic information about their rights and responsibilities under

these laws. The applicable laws and regulations should be consulted when specific questions arise.

The Federal Family and Medical Leave Act of 1993

FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and

medical reasons. The law contains provisions on employer coverage; employee eligibility for the law's benefits; entitlement to leave,

maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and,

protection for employees who request or take FMLA leave. The law also requires employers to keep certain records.

EMPLOYER COVERAGE

FMLA applies to all public agencies, including state, local, and federal employers, local education agencies (schools), as well as private

employers who have 50 or more employees.

EMPLOYEE ELIGIBILITY

To be eligible for FMLA benefits, an employee must:

(1) work for a covered employer;

(2) have worked for the employer for a total of 12 months;

(3) have worked at least 1,250 hours over the previous 12 months; and

(4) work at a location where at least 50 employees are employed by the employer within 75 miles.

LEAVE ENTITLEMENT

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for

one or more of the following reasons:

1. for the birth and care of the newborn child of the employee;

2. for placement with the employee of a son or daughter for adoption or foster care;

3. to care for an immediate family member (spouse, child, or parent) with a serious health condition; or

4. to take medical leave when the employee is unable to work because of a serious health condition.

Spouses employed by the same employer are jointly entitled to a combined total of 12 workweeks of family leave for the birth and

care of the newborn child, for placement of a child for adoption or foster care, and to care for a parent who has a serious health

condition.

Leave for birth and care, or placement for adoption or foster care must conclude within 12 months of the birth or placement.

Under some circumstances, employees may take FMLA leave intermittently – which means taking leave in blocks of time, or by

reducing their normal weekly or daily work schedule.

If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer's

approval. FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill immediate family member,

or because the employee is seriously ill and unable to work.

Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to

cover some or all of the FMLA leave.

The employer is responsible for designating if an employee's use of paid leave counts as FMLA leave based on information from the

employee.

"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either:

5. any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential

medical care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or

6. Continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or

perform other regular daily activities) due to:

(1) A health condition (including treatment therefor, or recovery therefrom) lasting more than three consecutive days, and any

subsequent treatment or period of incapacity relating to the same condition, that also includes:

treatment two or more times by or under the supervision of a health care provider; or one treatment by a health care provider

with a continuing regimen of treatment; or

(2) Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or

(3) A chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care

provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not

necessary for each absence; or

(4) A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal

cancer). Only supervision by a health care provider is required, rather than active treatment; or

(5) Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of

incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).

"Health care provider" means

  • doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctors practice; or

  • podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice, and performing within the scope of their practice, under state law; or

  • nurse practitioners, nurse-midwives and clinical social workers authorized to practice, and performing within the scope of their practice, as defined under state law; or

  • Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;

or

  • Any health care provider recognized by the employer or the employer's group health plan benefits manager

MAINTENANCE OF HEALTH BENEFITS

A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such

insurance was provided before the leave was taken and on the same terms as if the employee had continued to work.

Arrangements must be made for employees to pay their share of health insurance premiums while on leave. In some instances,

the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA

leave.

JOB RESTORATION

Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent

pay, benefits, and other terms and conditions of employment. In addition, an employee's use of FMLA leave cannot result in the

loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the

employee under a "no fault" attendance policy.

NOTICE AND CERTIFICATION

Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is

foreseeable and such notice is practicable.

Employers may also require employees to provide:

  • medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member;

  • second or third medical opinions (at the employer's expense) and periodic recertification; and periodic reports during FMLA leave regarding the employee's status and intent to return to work.

  • When intermittent leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer's operation.

  • Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this posting requirement may be subject to a fine of up to $100 for each separate offense.

Also, covered employers must inform employees of their rights and responsibilities under FMLA, including giving specific written

information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to

return to work after FMLA leave.

UNLAWFUL ACTS

It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by FMLA. It is also unlawful for

an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any

proceeding, related to FMLA.

ENFORCEMENT

The Wage and Hour Division investigates complaints. If violations cannot be satisfactorily resolved, the U.S. Department of Labor

may bring action in court to compel compliance. Individuals may also bring a private civil action against an employer for violations.

SPECIAL RULES FOR SCHOOLS

Special rules apply to employees of schools. Generally, these rules provide for FMLA leave to be taken in blocks of time when

intermittent leave is needed or the leave is required near the end of a school term.

FURTHER INFORMATION

The final rule implementing FMLA is contained in the January 6, 1995, Federal Register. For more information, please contact the

nearest office of the Wage and Hour Division, listed in most telephone directories under U.S. Government, Department of Labor.

Legal References: 29 USC § 2601 et seq.; 29 CFR Part 825

MAINE FAMILY MEDICAL LEAVE LAW

The Maine Family Medical Leave Law apply when the federal Family and Medical Leave Act does not. Major differences between the

federal and state laws are noted parenthetically.

EMPLOYER COVERAGE

The Maine law applies to all employers, including schools, who have at least 15 employees at one location.

EMPLOYEE ELIGIBILITY

To be eligible for Maine family medical leave benefits, an employee must:

(1) work for a covered employer;

(2) have worked for the employer for a total of 12 months; and

(3) work at a site with at least 15 employees (differs from federal law).

(There is no minimum hours requirement - differs from federal law).

LEAVE ENTITLEMENT

A covered employer must grant an eligible employee up to a total of 10 consecutive workweeks of unpaid leave during any

two-year period (federal law differs) for one or more of the following reasons:

  • for the birth and care of the newborn child of the employee;

  • for placement with the employee of a son or daughter aged 16 years or less for adoption;

  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or

    • to take medical leave when the employee is unable to work because of a serious health condition.

(Unlike the federal law, the state law does not provide for intermittent leave.)

SERIOUS HEALTH CONDITION

"Serious health condition" means an illness, injury, impairment or physical or mental condition that involves:

A. Inpatient care in a hospital, hospice or residential medical care facility; or

B. Continuing treatment by a health care provider.

"Health care provider" means:

  • A doctor of medicine or osteopathy who is licensed to practice medicine or surgery in this State; or

  • Any other person determined by the Secretary of Labor to be capable of providing health care services.

MAINTENANCE OF HEALTH BENEFITS

The employer shall make it possible for employees to continue their employee benefits at the employee's expense. (Differs from federal law)

JOB RESTORATION

Upon expiration of the leave, an employee is entitled to be restored by the employer to the position held by the employee when the leave commenced or to a position with equivalent seniority status, employee benefits, pay and other terms and conditions of employment. This subsection does not apply if the employer proves that the employee was not restored as provided in this subsection because of conditions unrelated to the employee's exercise of rights under this subchapter.

NOTICE AND CERTIFICATION

The employee must give at least 30 days' notice of the intended date upon which family medical leave will commence and terminate, unless prevented by medical emergency from giving that notice.

The employer may require certification from a physician to verify the amount of leave requested by the employee, except that an employee who in good faith relies on treatment by prayer or spiritual means, in accordance with the tenets and practice of a recognized church or religious denomination, may submit certification from an accredited practitioner of those healing methods.

Legal Reference: 26 MRSA § 843 et seq.

First Reading: 12/21/2005

Second Reading: 01/25/2006

Adopted: 01/25/2006