Family and Medical Leave Act

• Author: Steven E. Clark, of Clark Firm PLLC
• Pages: 133-270

25-1

Chapter 25

THE FAMILY AND

MEDICAL LEAVE ACT

By Steven E. Clark, of Clark Firm PLLC

25:1. PURPOSE AND SCOPE

25:2. COVERAGE

A. Effective Date

B. Covered Employers

1. Private Sector Employers

a. Counting Employees

b. Single or “Integrated” Employer

c. Joint Employers

d. Successor Employers

2. Public Sector Employers

3. Immunity of State Employers

C. Eligible Employees

1. Employed for at Least 12 Months

2. Employed for at Least 1,250 Hours of Service

3. 50 Employees Within 75 Miles of Worksite

25:3. LEAVE ENTITLEMENT

A. Birth of and Care for Newborn

B. Placement for Adoption or Foster Care

C. To Care for a Family Member

D. Needed to Care for

E. Employee Unable to Perform

F. Serious Health Condition

1. Incapacity

2. Treatment

3. Chronic Serious Health Condition

TEXAS EMPLOYMENT LAW 25-2

4. Cosmetic/Restorative Treatments

5. Substance Abuse as a Serious Health Condition

G. To Care for a Service Member

H. Same-Sex FMLA Benefits

25:4. TYPE OF AND MEASURING THE LEAVE

A. Intermittent and Reduced Leave Schedule

1. Medically Necessary

2. Duties of Employee/Transfer to Alternative Position

B. Paid vs. Unpaid Leave

C. Measuring the Leave

D. Light Duty

25:5. EMPLOYER POSTING AND NOTICE REQUIREMENTS

A. FMLA Poster

B. Penalties for Violation of Posting Requirement

C. Written Guidance to Employees

D. Eligibility Notice Requirement

E. Rights and Responsibilities Notice

25:6. MECHANICS OF LEAVE

A. Requesting Leave

1. Sufficiency of Employee’s Notice

2. Foreseeable Leave

3. Unforeseeable Leave

B. Employer’s Response

1. Confirmation of Eligibility

2. Designation of Leave

3. Contents of Designation

C. Medical Certification

1. Employer’s Option

2. Health Care Provider

3. Recertification

4. Impact of GINA (Genetic Information Nondiscrimination Act)

5. Impact of HIPAA (Health Insurance Portability and Accountability Act)

25-3 THE FAMILY AND MEDICAL LEAVE ACT

6. Impact of ADAAA Amendments

7. Updated FMLA Forms

D. Maintenance of Benefits

1. Health Benefits

2. Other Benefits

E. Key Employees

F. Returning From Leave

1. Notice

2. Certification

G. Job Restoration

1. Exceptions

2. Equivalent Position

3. Joint Employment

25:7. PROHIBITED ACTS

A. Interference With Rights

B. Interference With Proceedings or Inquiries

C. Investigative Authority

25:8. ENFORCEMENT

A. Action by DOL

B. Civil Action by Employees

1. Individual Liability

2. Prospective or Former Employees

C. Limitations

D. Relief/Defenses/Jury Trial

1. Damages

2. Defense to Liquidated Damages

3. Equitable Relief

4. Jury Trial

E. Burdens of Proof

25:9. RECORDKEEPING

25:10. OVERLAP AMONG ADA, FMLA AND WORKERS’ COMPENSATION

A. Contrast Between Purposes of ADA, FMLA, and Workers’ Compensation