The Family and Medical Leave Act of 1993

Publication year1993
CitationVol. 22 No. 9 Pg. 1851
22 Colo.Law. 1851
Colorado Lawyer

1993, September, Pg. 1851. The Family and Medical Leave Act of 1993


Vol. 22, No. 9, Pg. 1851

The Family and Medical Leave Act of 1993

by John R. Webb, David T. Mitzner and David C. Klimaszewski

The Family and Medical Leave Act of 1993 ("FMLA" or "Act"),(fn1) enacted February 5, 1993, imposes an obligation on many employers to provide certain employees with a maximum of twelve weeks unpaid leave per year, in connection with the birth or placement of the employee's child (where the employee adopts a child or provides foster care for a child), care by the employee of his or her seriously ill child, spouse or parent or serious illness of the employee.

No court decisions have yet been reported under the Act. On June 4, 1993, the U.S. Department of Labor issued detailed interim regulations ("Regs"),(fn2) to which courts will probably show deference.(fn3) Courts dealing with the Act also will look to precedent developed under other federal employment statutes, primarily the Fair Labor Standards Act ("FLSA")(fn4) and Title VII of the 1964 Civil Rights Act ("TitleVII").(fn5) Some sections of the FMLA closely parallel, or expressly incorporate, provisions in these statutes.(fn6)

Overall, the Regs take a broad view of employee rights created by the Act and a narrow view of limitations on those rights that the Act reserves to employers. Employers should approach disputes concerning FMLA leave with caution, due to the serious consequences of being found to have violated the Act (see "Enforcement and Remedies" below). In addition, compliance with the FMLA will trigger many consequences involving other areas of employee benefits regulated by federal statute, primarily the Employee Retirement Income Security Act of 1974, as amended ("ERISA").(fn7)

This article provides an overview of the FMLA.


According to the Regs, the purpose of the Act is to balance the demands of the workplace with the needs of families, and to promote the stability and economic security of families and the national interest in preserving family integrity.(fn8) The FMLA recognizes that workers should not be forced to choose between continuing employment and meeting personal or family obligations. The Act also recognizes employer interests in enhanced productivity, which Congress believed would be fostered by workers who "can count on durable links to their workplace."(fn9)

EFFECTIVE DATE--- FMLA § 405; REGS § 825.102

For non-union employees, the Act became effective August 5, 1993. For union employees, the Act will become effective February 5, 1994, or at the expiration of the collective bargaining agreement, if it occurs before that date. Presumably, if the collective bargaining agreement does not expire by this date, it must be amended. Employers having both union and non-union personnel will have to maintain

[Please see hardcopy for image]

Left to right: John R. Webb, David T. Mitzner and David C. Klimaszewski.

John R. Webb, Denver, heads the Employment Practice Group at Holme Roberts & Owen. David T. Mitzner, Denver, heads the Employee Benefits Group at Holme Roberts & Owen David C. Klimaszewski, Denver, is an associate in the Employee Benefits Group at Holme Roberts & Owen. The authors acknowledge the assistance of Melissa R. Hart, a summer clerk who has completed her first year at Harvard Law School.


and administer different leave policies until the FMLA becomes effective for their union personnel

COVERED EMPLOYERS--- FMLA § 101 (4); REGS §§ 825.104-109

The Act covers private employers, engaged in or affecting interstate commerce, who have fifty or more employees during twenty weeks in either the preceding or the current calendar year. The twenty weeks need not be consecutive. Reference to the preceding calendar year would require that a covered employer go a full calendar year, without having fifty or more employees during twenty weeks, to escape from coverage. All persons "on the payroll" are considered employees for purposes of this test.(fn10) Thus, the test includes part-time employees and personnel on leave. Employees on temporary layoff are not counted.

Separate entities may be integrated as a single employer based on factors such as common management, centralized labor relations and common ownership. The FMLA also may cover successors in interest and joint employers. These concepts track similar provisions under TitleVII. The successor in interest analysis will focus on continuity of plant, workforce, products and services. Determination of joint employment will be based on control over the employee, including supervising, setting pay rates, hiring and firing.

In the event of joint employment, such as workers from a leasing agency, employees must be counted by both employers. The primary employer, the leasing agency, must satisfy FMLA obligations. The secondary employer, which uses leased employees, would be prohibited from discriminating against employees for asserting rights under the Act (see "Prohibited Actions" below).

The FMLA treats state and local governments as employers. Most executive branch employees of the federal government are also protected. Special rules cover "instructional employees" of primary and secondary schools(fn11) and congressional employees.(fn12) All "public agencies" are covered, regardless of the fifty-employee/twenty-week threshold.(fn13) However, employees of public agencies will not be covered if their employers fail to meet the test of employing at least fifty personnel within a seventy-five-mile radius (see next section).

ELIGIBLE EMPLOYEES--- FMLA § 101 (2); REGS §§ 825.110-111

The FMLA protects employees of either gender who have worked for the employer at least twelve months and who have also worked at least 1,250 hours during the twelve-month period preceding commencement of the leave. Neither the Regs nor the Act provides guidance as to close questions arising under the definition of "employee."(fn14) The twelve months need not have been worked consecutively. Hours worked will be based on general FLSA principles. The 1,250-hour requirement will be presumed to have been satisfied if the employee has worked at least twelve months and the employer has not kept hourly work records. The duration-of-employment and hours-worked tests are measured as of the date leave commences and will include pre-FMLA employment. Nothing in the Act or the Regs limits the leave rights of a part-time employee who is otherwise eligible.

An important limitation excludes otherwise eligible employees who work at a worksite where the employer does not employ fifty personnel within a seventy-five-mile radius. Worksite can include a group of contiguous locations. Although the determination must be made as of the date the employee requests the leave, employers could avoid human relations problems by forewarning employees at such locations that their FMLA rights may be limited.

All employees maintained on the payroll are counted. Transitory workers will be deemed to have their assigned home base as the worksite. FMLA mileage requirements are determined on the basis of road miles, not "as the crow flies." According to the Preamble, "worksite" will be interpreted in light of the Worker Adjustment and Retraining Notification Act.(fn15)

DURATION OF LEAVE-FMLA § 102(a)(1); REGS §§ 825.200-202

An employee cannot take more than twelve weeks of FMLA leave per twelvemonth "leave year," even if multiple qualifying FMLA events occur within that period, as the employer has chosen to measure the "leave year." However, an employee on leave as of the effective date of the Act is entitled to the full twelve-week FMLA leave.(fn16) Employers have discretion to measure the leave year on a fixed period (e.g., calendar or fiscal year), forward from the first date of leave or backwards from the first date of leave. Under the fixed period method, nothing would prevent an employee from taking twelve weeks of FMLA at the end of the twelve-month period, and a second twelve weeks immediately at the beginning of the next twelve-month period.

To avoid the Act becoming a disincentive against employment of both spouses, where both spouses work for the same employer, they may claim only a combined total of twelve weeks for birth or adoption or foster home placement of a child ("child placement leave") or care for a parent (but not a parent-in-law).(fn17) Each spouse could take his or her full twelve weeks for all other qualifying FMLA events. In addition, under many employers' leave policies, the mother could take childbearing leave without eroding the father's right to a full twelve weeks of FMLA child placement leave, unless the employer required that the mother's childbearing leave be substituted for FMLA leave (see section on paid leave below).

The FMLA creates a floor, not a ceiling, in the event that state law, company policy or a collective bargaining agreement provides a right to more than twelve weeks leave per year.(fn18) No Colorado statute imposes any leave obligation on private employers. Although the FMLA does not supersede state law that provides greater benefits, if the state law and the Act guarantee leave for the same qualifying event, then leave taken under one counts against leave available under the other. An employee taking leave under state law must comply with requirements of state law, whether more or less generous than requirements of the Act.


The FMLA permits leave to be taken as intermittent (separate blocks of time) or reduced (less than a full workweek or workday) leave on the basis of medical need, except that birth or child placement leave may be taken on an intermittent or reduced basis only with employer...

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