The Family and Medical Leave Act (FMLA) permits eligible employees to take up to 12 weeks of leave for any of the following reasons:
Congress amended the FMLA in 2009 to increase employer notice requirements and allow eligible employees to take a combined total of 26 workweeks of leave to care for a sick or injured member of the Armed Forces.
In addition to the federal FMLA, Massachusetts has a parental leave law that specifically addresses an employer’s obligation to provide leave for an employee’s pregnancy or adoption. Massachusetts also has a small necessities leave act, which requires employers to provide a limited amount of time to employees for activities related to a child’s schooling or a family member’s need for doctor’s appointments.
The Family and Medical Leave Act (FMLA) covers private employers that employ 50 or more employees for 20 or more full workweeks in the current or preceding calendar year. When an employer satisfies this threshold, it remains covered by the FMLA until it no longer employs at least 50 employees during 20 workweeks in the current and preceding calendar years.
To make this determination, an employer must use the definition of “employee” under the FMLA, which includes:
The FMLA covers all public employers and educational agencies, regardless of the number of employees.
To be eligible for FMLA leave, an employee must work for his or her employer for both:
The 12 months of employment need not be consecutive. However, employment periods prior to a break in service of seven years or more generally need not be counted in determining eligibility.
The employee eligibility requirements are calculated when the employee commences leave, not when the employee requests leave.
In addition, at the time that the employee requests leave, he or she must be employed at a location where the employer employs at least 50 employees within a 75-mile radius of the job site.
To invoke FMLA rights, the law does not require the employee to specifically request FMLA leave from the employer. Instead, it requires only that the employee notify his or her employer of the need for leave, and the reason for the request. A covered employer must provide the eligible employee with up to 12 weeks of leave during any 12-month period. The employee may take the leave for any of these reasons:
The DOL recently clarified the definition of “son or daughter” for the purpose of taking FMLA leave. Under the recent interpretation, “son or daughter” is a “biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” The DOL further explains that the meaning of “in loco parentis” (meaning, in place of a parent) must be construed to allow an employee who actually has day-to-day responsibility for caring for a child to take leave even if the employee does not have a biological or legal relationship to the child. To make this determination, the employer should assess whether the individual asserting the status of in loco parentis intends to assume the status of a parent toward the child. The DOL’s interpretation specifies that the term “in loco parentis” extends to individuals in gay, lesbian, bisexual, and transgender relationships.
In addition, by rule finalized in February 2015, the DOL has expanded the protections of the FMLA to same-sex married couples by redefining the term “spouse” to include “the other person whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the state in which the marriage was entered into.”
For military caregiver leave, a “serious injury or illness” is one that may render the service member medically unfit to perform duties and for which he or she is undergoing medical treatment, recuperation or therapy, or otherwise on the military’s temporary disability retired list.
For leave based on a qualifying exigency, a “qualifying exigency” includes:
If spouses work for the same employer, the FMLA entitles them to an aggregate of 12 weeks of leave per 12-month period for birth, adoption, foster care, or to care for a sick parent. Each spouse, however, is entitled to the remainder of his or her 12-week entitlement for any other qualifying leave.
Employees are entitled to 12 weeks of FMLA leave during any 12-month period. The 12-month period may be calculated by any of the following methods:
Most employers prefer the “rolling” method or the “counting forward” method because such methods prevent an employee from joining multiple leave periods together by taking 12 weeks of leave at the end of a calendar year and then 12 weeks of leave at the beginning of the next calendar year for a total of 24 consecutive weeks.
The employer should designate its calculation method in advance, and apply it uniformly and consistently. If the employer fails to select a method and notify the employees of which method applies, the method most beneficial to the employee will apply. If an employer changes methods, it must notify employees at least 60 days in advance of implementing and enforcing such change.
The law does not require employees to take FMLA leave in full-day intervals or single blocks of time. An employee is entitled to take intermittent FMLA leave or reduced schedule leave where it is medically necessary to care for a serious health condition of the employee or the employee’s immediate family member. An employee may also take intermittent or reduced schedule leave for a service member’s illness or injury if there is a medical need for leave that is best accommodated through intermittent leave. If an employee takes intermittent or reduced schedule leave for the birth or adoption of a child, however, he or she may only take leave with the employer’s consent.
The FMLA defines “intermittent leave” as leave taken in separate blocks of time due to a single qualifying condition. A “reduced leave schedule” is a change from full-time to part-time employment.
If an employee requests intermittent leave or a reduced leave schedule, the employer may temporarily transfer the employee to an “alternative position” for the duration of the intermittent or reduced leave, provided that the employee both:
The employer may reduce benefits in proportion to the number of hours worked only if the reduction is normal practice.
The FMLA defines the term “serious health condition” as an illness, impairment, or physical or mental condition involving one of the following:
Several types of illnesses or injuries are specifically excluded from the definition of “serious health condition” in the regulations. Some examples include the following:
The FMLA defines “healthcare provider” as a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state where the doctor practices, or any other person determined by the Secretary of Labor to be capable of providing healthcare services. The regulations include in this definition:
who are authorized to practice in the state and who perform within the scope of their practices.
While the FMLA does not require a covered employer to pay employees during FMLA leave (unless the employer requires substitution of paid leave) the employer must continue to provide eligible employees any employment benefit that they may have accrued prior to beginning FMLA leave. If the employer changes or adds to benefits during the employee’s leave, she or he is also entitled to those modifications. The key here is that the employer must maintain the employee’s benefits under the same conditions as before the leave.
For instance, a covered employer must continue to provide coverage under its group health plan to an employee during the leave period under the same terms as if the employee continued employment. If employees regularly pay a portion of the insurance premiums, an employee should continue to make such payments while on leave. Even if an employee does not pay his or her portion of premiums during leave, the employer should pay the premiums on the employee’s behalf and attempt to recoup payment upon the employee’s return.
If the employee fails to return to work, an employer is entitled to recover premiums paid for maintaining coverage so long as the failure to return is not due to a serious health condition of the employee or other circumstances beyond his or her control. Although a covered employer’s FMLA obligations end when the employment relationship ends, the employer may still have obligations to maintain health benefits as required by the Consolidated Omnibus Budget Reconciliation Act (COBRA). For more information, see Health insurance continuation coverage.
An employer may not exclude an employee from attendance bonuses, safety bonuses, or similar bonuses because of the FMLA leave. Similarly, the employer must permit the employee to obtain any unconditional pay increases granted during the leave.
An employee is not entitled to the accrual of any seniority or employment benefits during the period of leave. If an employer calculates bonuses and pay increases based on the work time or accrued earnings, and the employee has not accrued such hours or earnings during the leave period, the employer may pay less to the employee than to other employees. Similarly, the employer does not need to treat FMLA leave as credited service for benefit accrual, vesting, or eligibility to participate in pension or other retirement plans.
After an employee takes FMLA leave, the employer must restore him or her to the former job or to an “equivalent” position. An “equivalent” position is one that is virtually identical to the employee’s former position in terms of pay, benefits, working conditions, duties, skill, authority, privileges, and status. The position must be in the same or geographically similar worksite with an equivalent work schedule and shift.
If an employee cannot perform an essential function of the position because of a physical or mental condition, the employee has no right to be restored to another position under the FMLA. In many circumstances, however, the Americans with Disabilities Act (ADA) may require further accommodations from the employer. See Disabilities and reasonable accommodation.
A reinstated employee has no greater entitlement to reinstatement or other benefits and conditions of employment, than if the employee had not taken the leave. If an employer eliminated an employee’s position in a nondiscriminatory reduction in force, the employer may deny employee restoration to work. However, the employer must be able to prove that the employee would have been terminated if he or she had not taken the FMLA leave.
The FMLA permits employers to refuse to reinstate a key employee to his or her position after taking FMLA leave. A “key employee” is a salaried employee in the highest paid 10% of the workforce (both salaried and non-salaried). The employer’s workforce includes all of its employees within 75 miles of the employee’s facility.
This exception applies when:
Where an eligible employee plans to take foreseeable leave for birth, placement for adoption or foster care, or planned medical treatment, the employee must provide at least 30 days’ notice of his or her intention to take leave. If the employee fails to give 30 days' notice for a foreseeable leave with no reasonable excuse for the delay, the employer may deny the taking of leave until at least 30 days after the employee provides notice. This notice requirement only applies when the employer has provided the employee with notice of the FMLA requirements.
If the employee intends to take leave in less than 30 days, the employee must provide notice “as soon as practicable,” which ordinarily may be satisfied by at least verbal notification to the employer, within one or two business days of when the employee knows of the need for leave. If an employee takes leave for a planned medical treatment, the employee must make a reasonable effort to schedule the treatment in a manner that will not “unduly disrupt” the employer’s operations, subject to approval by a healthcare provider.
When an employee takes unforeseeable leave, the employee must provide notice “as is practicable,” or within two or three working days of learning of the need for leave, except in extraordinary circumstances where notice is not feasible.
As soon as the employee informs the employer of a need for leave, the employer has the burden to determine whether the leave is for an FMLA-qualifying reason. The employer may request medical certification (see, Certifications requirements) to determine if the reason for the leave qualifies as a serious health condition.
Congress recently amended the FMLA to include more specific notice requirements for an employer. In an effort to clarify an employer's obligations, the regulations have divided the notice requirements into four separate categories.
To comply with the FMLA’s general notice requirements, employers must post and distribute general notice of an employee’s rights under the FMLA.
The eligibility notice is a one that employers must give to employees who request leave or need leave. The notice informs the employee of the eligibility requirements for FMLA leave (such as length of employment, number of employees within a 75-mile radius). The notice does not inform the employee whether a particular medical condition qualifies as one for FMLA leave.
The rights and responsibilities notice is one that provides employees who need FMLA leave with general information about rights and responsibilities under the FMLA. An employer must give this notice to an employee whenever it gives an eligibility notice. A rights and responsibilities notice must include the following information:
The designation notice is a one that the employer must give employees who have requested or need FMLA leave to inform them whether or not the employer has approved the leave.
The FMLA imposes strict recordkeeping requirements on employers. Covered employers must maintain records concerning their obligations under the FMLA. Employers must:
Employers must maintain records of the following information:
The employer should maintain information relating to medical certifications, recertifications, or medical histories of employees or family members (created for the purpose of FMLA leave) as confidential medical records in files that are separate and apart from employees’ general personnel records and stored in a secure location.
When an employee submits a request for FMLA leave, an employer may require the employee to submit a medical certification form, signed by a healthcare provider, indicating that the employee (or the employee’s family member) does in fact suffer from a serious health condition. Normally, an employer should make the request for written certification within two days of receiving notice of leave from the employee. Moreover, the employer should provide the employee 15 days to respond to the request for certification, or should request it as soon as reasonably possible due to the circumstances.
When the employee submits a complete and sufficient medical certification, the employer may not request additional information from the healthcare provider. However, the employer’s human resources department or leave administrator (not the employee’s supervisor) may contact the healthcare provider after the employee has been given the opportunity to cure any deficiencies in order to “authenticate” or “clarify” the certification.
If the employer has reason to doubt the validity of the certification, it may require the employee to obtain a second or third opinion from another healthcare provider at the employer’s expense. Upon request, employers must provide an employee with copies of second and third opinions within five business days.
Certification is generally sufficient when it states:
Employers may also require employees to submit a timely, complete certification to support a request for FMLA leave due to a qualifying exigency or for military caregiver leave due to a serious illness or injury.
When an employer provides FMLA forms to its employees, it is advisable that the employer also include the following information in accordance with the Genetic Information Nondiscrimination Act (GINA):
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Sample forms are available on the Department of Labor’s website:
The forms are:
The Wage and Hour Division of the U.S. Department of Labor’s Employment Standards Administration enforces the FMLA. Most violations of the FMLA are the result of employer confusion in interpreting and implementing the Act, as opposed to willful violations. Common violations committed by employers include the following:
An eligible employee may file a private civil action against an employer in state or federal court for FMLA violations. An employee must file such lawsuit within two years of the date of the alleged violation for ordinary damages, or within three years for willful violations. Unlike other civil rights statutes, an employee enforcing his or her rights under the FMLA is not required to file a complaint with the Wage and Hour Division prior to filing a civil lawsuit, although an employee may do so.
Leave under the FMLA need not be (and usually is not) paid. In Massachusetts, however, a statute enacted as part of the "Grand Bargain" bill in June 2018 phases in paid leave requirements over several years. Employers are required to post a notice of the newly available benefits and provide employees with specific written information about them within 30 days of the employee’s start date. In addition, Massachusetts employers with 25 or more employees in the Commonwealth are required to contribute to the Family and Employment Security Trust Fund at a contribution rate of 0.68% of each employee’s wages (the contribution rate may be adjusted annually).
Employees may take up to:
The maximum number of weeks that can be taken in a benefit year is 26. After an initial seven-day waiting period, employees will be entitled to receive wage replacement from the Trust Fund equal to 80% of their wages, up to a maximum of 50% of the state average weekly wage and 50% of their wages above that threshold, up to a maximum of $1,084.31 per week. The paid family and medical leave will be available for largely the same reasons as those set forth in the FMLA (and described previously). The Massachusetts law also provides for paid intermittent family and medical leave, as well as job restoration rights and protection of benefits accrual. Unlike the FMLA, the state law will make employees eligible for the state benefit regardless of their length of service or hours worked. Paid leave under the state law runs concurrently with leave taken under the FMLA.
The Massachusetts Department of Family and Medical Leave has issued a series of updates reflecting the latest changes made to the Paid Family Leave program. Those updates can be found at:
The Massachusetts Parental Leave Act, formerly called Massachusetts Maternity Leave in the Workplace, requires employers with six or more employees to provide eight weeks of unpaid leave to employees for the birth or adoption of a child. The law applies to employees who have completed an initial probationary period as set by the terms of employment, but which is not greater than three months.
The MPLA permits paid or unpaid leave to an eligible employee for any of the following instances:
To be covered by the MPLA, an employer must have six or more employees. The law applies equally to private, public and nonprofit employers.
An employee becomes eligible for the MPLA when all the following requirements are met:
All employees are eligible for parental leave regardless of gender and may not exceed three months.
An employee is required to provide at least two-weeks' notice of the anticipated date of departure along with an anticipated date of return.
Employer responsibilities under the MPLA include:
An employer must provide MPLA leave to an eligible employee for “the purpose of giving birth” or to adopt a child. Therefore, the employee may take the leave at the time of birth or adoption but not substantially earlier or later.
The law does not require the employer to pay an employee on MPLA or to include MPLA leave in the computation of benefits, rights and advantages that are part of employment or that an employer pay for the costs of any benefits, plans or programs during the leave. However, if an employee is entitled to receive pay or benefits during his or her parental leave according to a collective bargaining agreement, company policy, employment contract or other agreement, the employer must permit the pay or benefits.
Moreover, if an employer provides pay, benefits or the cost of benefits to employees on non-MPLA leaves, the employer must provide the same terms to employees on parental leave. For instance, if an employer compensates employees who are on extended sick leave, it should also pay employees on parental leave.
If an employer does not pay employees on parental leave, it must permit (but not require) employees to use other forms of leave at the same time as parental leave, including:
The MPLA requires an employer to restore an employee to their previous or a similar position upon return to work. The position must have the same:
as the position the employee held before the leave.
The MPLA requires that an employer not change an employee’s right to receive advantages based on a parental leave, including:
However, the employer need not include parental leave in the computation of benefits, rights and advantages.
The MPLA requires employers to post a notice in a conspicuous place describing the law's requirements and the employer's policies as to parental leave.
The MCAD enforces the MPLA. Before an employee may file a claim in court, she must file a complaint with the MCAD. The complaint must be filed within 300 days of the alleged violation. The employee is entitled to the same remedies under the MPLA as are available under the Massachusetts anti-discrimination statute. See Chapter 12: Discrimination.
For more information, employers are encouraged to visit: