The vast majority of businesses are somewhat familiar with the Family and Medical Leave Act (“FMLA”). Often, I receive questions as to whether a particular employee of one of the firm’s clients qualifies for leave from their job under the FMLA. This article will address basic points about employee qualification under the FMLA and a very recent and significant change to the regulatory definition of spouse.
What Is The FMLA?
The FMLA is a Federal statute that allows for covered employees of covered employers to take unpaid leave from their job to care for themselves or a qualified family member in an event of illness, after the birth or addition of an adopted or foster child to their family, or for circumstances related to qualified military activity.
Does The FMLA Affect My Illinois Business?
All private sector businesses in Illinois with 50 or more employees for a period of 20 or more workweeks in the current or preceding year are subject to the provisions of the FMLA.
What Does FMLA Leave Entail?
Generally, the FMLA allows a covered employee of a covered employer the opportunity to take up to 12 work-weeks of unpaid leave from their position, with the ability to return to their position after the leave period. The leave could be in relation to: a. the birth or addition of an adopted or foster child to their family; b. to care for a spouse, son, daughter, or parent who has a serious health condition; and c. for a serious health condition of the covered employee that renders the covered employee unable to perform the essential functions of the job. The FMA also requires that the covered employer continue to offer group health insurance benefits to the covered employee during the leave period under the same terms and conditions as if the employee had not taken leave.
Additionally, an eligible employee may take up to 26 work-weeks of unpaid leave during a single 12 month period for military caregiver leave related to a qualified event arising from a spouse, son, daughter, parent or next of kin of the service member on certain types of active duty status.
How Does A Covered Employee Become Eligible For FMLA Leave?
An employee of a covered FMLA private sector employer is generally entitled to FMLA leave if the employee works for the covered FMLA employer for at least 12 months and at least 1,250 hours.
Recent Changes To The FMLA
On February 25, 2015, the United States Department of Labor issued a Final Rule to amend the regulatory definition of “spouse” as it relates to the FMLA. The new rule becomes effective on March 27, 2015.
The new rule amends the regulatory definition of spouse under the FMLA to allow eligible employees in legal same-sex marriages the right to take FMLA leave to care for a sick spouse or their qualified family member effectively in all 50 States, regardless of the state law related to same-sex marriage in any particular state. Prior to the new rule taking effect, an employee of a covered employer was only entitled to FMLA leave to care for a same-sex spouse or their qualified family member if the applicable state law legally recognized same-sex marriage. This change allows for a consistent treatment of employees in same-sex marriages in all 50 states under the FMLA.
How Can Businesses Ensure That They Are Compliant With The FMLA?
It is critical to have a plan in place to address instances of employees having protected rights under the FMLA. Based upon the recent and significant changes in certain Federal and State laws related to the rights of same-sex spouses, it is important for all employers to determine if their internal policies, employee policy manuals, and notices are current. A thorough review of employment policies and related law changes should be conducted by qualified legal counsel on a regular basis.
For more information about rules governing employers in Illinois, or this article, please feel free to contact John W. Albee at Albee Law PC via telephone (312) 279-0115 or via email at jalbee@albeelaw.com.
