State and local government employer obligations under the Family and Medical Leave Act.

• Author: Wimer, Ruth

The first significant piece of legislation signed by President Bill Clinton--The Family and Medical Leave Act (FMLA)--became generally effective August 5, 1993.(1) The act requires employers, including public agencies, to provide up to 12 weeks of unpaid job-secured leave with medical benefits to employees for family and medical reasons. The Department of Labor is responsible for enforcement of the FMLA and already has issued detailed regulations and forms to assist employers. The purpose of this article is to equip the state and local government employer with a practical guideline for complying with the somewhat complicated requirements of the FMLA and thereby avoiding the unfavorable sanctions for failure to do so.

Employers Covered by FMLA

In determining the applicability of the FMLA requirements, it is important to make two separate determinations: which employers are covered and which employees are covered.

The regulations promulgated under the FMLA by the Department of Labor, Section 825.108, define Public Agency in accordance with Section 3(x) of the Fair Labor Standards Act (FLSA) to include the government of a state or a political subdivision of the state or any interstate governmental agency. Therefore, any state and local government employer must take the actions required by the FMLA.

Employees Covered by FMLA

For an employee to be eligible for the benefits provided under the FMLA, the employee must have worked for the employer for at least 12 months and for at least 1,250 hours during the year preceding the start of the leave and be employed at a worksite where the employer employs at least 50 employees within a 75-mile radius. The regulations provide that the 12 months that the employee must have been employed by the employer need not be consecutive months. Fifty-two weeks is deemed to be equal to 12 months.

Whether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under the FLSA for determining compensable hours of work. For this purpose, full-time teachers of an elementary or secondary school system or an institution of higher education or other educational establishment are deemed to meet the 1,250-hour test. An employer must be able to clearly demonstrate that such an employee did not work 1,250 hours during the previous 12 months in order to claim that the employee is not eligible for FMLA leave. Note that the period prior to the FMLA's effective date must be considered in determining an employee's eligibility.

To determine whether an employee qualifies under the FMLA for leave on the basis of being employed at a worksite which employs 50 employees within 75 miles, it must first be determined who is the "employer." A state or a political subdivision of a state constitutes a single public agency and, therefore, a single employer for purposes of determining employee eligibility. For example, a state is a single employer, a county is a single employer, and a city or town is a single employer.(2) The determination of whether 50 employees are employed within 75 miles is made when the employee requests the leave. The 75-mile radius is measured by road miles (not as the crow flies), and the number of employees employed by the employer within the 75-mile radius is based upon the number of employees maintained on the employer's payroll.

Triggering Events

The following events will trigger employer obligations under the FMLA:

* the birth to an employee of a son or daughter;

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

* the need to care for the employee's spouse, son, daughter or parent with a serious health condition; and

* the serious health condition of the employee that makes him or her unable to perform the job's functions.

For purposes of these events, spouse is defined to include a husband or wife as defined or recognized under state law for purposes of marriage, including common law marriage in states where it is recognized. Parent means a biological parent or an individual who stood in loco parentis to an employee when the employee was a child. This term specifically does not include parents "in-law." A son or daughter means a biological, adopted or foster child; a step child; a legal ward; or child of a person standing in loco parentis who is...