Family Medical Leave Act (FMLA)
As an employer, the City of Clarksville falls under the provisions of the Family Medical Leave Act (FMLA) because the City employs at least fifty or more employees within seventy-five miles of the work site and does so for twenty or more consecutive weeks out of the year. The FMLA allows ”eligible” employees to take off up to twelve work weeks of unpaid leave in any twelve month period for the birth or adoption of a child, to care for a family member, or if the employee himself/herself has a serious health condition.
To be eligible for FMLA an employee must have a condition that makes him or her unable to perform his/her essential job function. Substance abuse is covered when the employee is seeking treatment, and not just impaired by his/her usage.
An “eligible” employee is an employee who has been employed by the employer for at least twelve months and worked at least 1,250 hours during the previous twelve month period. The twelve months do not need to be consecutive.
Care of Family Member
An employee may ask to use FMLA to care for a family member, for their own physical/mental health care, and after the birth or adoption of a child. A family member is considered to be: a spouse, child, or parent. A spouse means a husband or wife as defined or recognized by Tennessee state law. A parent is either the biological parent or the person who acted as the parent when the employee was a child. A son or daughter is either biological, adopted, under foster care, a stepchild, a legal ward, or any child that the employee is assuming parenting responsibility for. The child must be under the age of 18 or over age 18 if a mental or physical handicap is present. The employer is allowed to ask for documentation, i.e, birth certificate, court documentation, or a medical provider’s certification.
Intentions to Return to Work
The employer is allowed to periodically ask the employee on leave to report his/her status and intentions to return to work. If an employee informs the employer that he/she does not intend to return to work, the employer may terminate the employment relationship and thus end the employee's FMLA. If an employee fraudulently obtains FMLA, he or she is no longer protected by FMLA in terms of job restoration and benefit maintenance.
- FMLA can be taken on an intermittent basis allowing the employee to work on a less than full-time schedule.
- An employer must give an employee requesting FMLA written notice, within five business days, if he/she is not eligible for FMLA. If the employer does not respond within five business days, the employee will be eligible to take the leave.
- The employee is entitled to have his/her benefits maintained, but he/she must continue to pay his/her portion during the leave. The employee also has the right to return to the same or equivalent position, pay, and benefits at the conclusion of their leave.
The eligible employee must provide thirty day advance notice for foreseeable events. Foreseeable events would include, but are not limited to, scheduled surgery, adoption, or birth of a child. The employer is allowed to ask the employee to obtain a certification from a medical provider testifying to the need for the employee to take the leave for himself/herself or for the family member. Upon completion of the leave the employer is allowed to require the employee to obtain a certification of fitness to return to work when the leave was due to the employee’s own health concerns. The employer can delay the start of FMLA for thirty days if the employee does not provide advance notice, and/or until the employee can provide certification from a medical provider.
Spouse Employed for the Same Company
If the employee and the employee’s spouse both work for the same employer, they cannot each take twelve weeks off for the birth of a child, when adopting a child, or to care for a parent with a serious health condition. However, a husband and wife who are employed with the same company are entitled to a combined total of twelve weeks under the above conditions. Each employee employed by the same employer is allowed to each take up to twelve weeks off for his/her own serious health condition.
Notice of Act's Provisions
Every employer covered by FMLA must post and keep posted a notice outlining the Act’s provisions. The posting must be in a conspicuous place whether or not the employer has any current eligible employees.
Military Family Leave Entitlements
The Family Medical Leave Act of 1993 was amended by the National Defense Authorization Act (NDAA) of 2008 to provide new military family leave entitlements. The NDAA expands the FMLA and adds two additional types of leave. Under these new provisions, employees may be granted up to twelve work weeks of leave during any twelve month period because of a qualifying “exigency” arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.
Also, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member shall be entitled to a total of twenty-six weeks of leave during a twelve month period to care for the service member.