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Publication #FE396

2017 Handbook of Employment Regulations Affecting Florida Farm Employers and Workers: Family and Medical Leave Act of 1993 [Federal]1

Fritz Roka, Michael Olexa, Carol Fountain, and Jessica Fernandez2

Purpose

To provide for unpaid job protected leave for family and medical reasons.

Employer Coverage

The Family and Medical Leave Act (FMLA) of 1993 defines covered employers as those who are engaged in or affect interstate commerce if they employ fifty or more workers during twenty or more calendar workweeks in the current or preceding calendar year. An employer includes any person who acts, directly or indirectly, in the interest of the employer to any of the employees of such employer. Most agricultural businesses fall under the interstate commerce definition.

Employers using the services of farm labor contractors (FLCs) may find that their permanent and seasonal workers, added to the FLC's crew, equal the fifty or more workers over a twenty-week period.

FMLA's definition of joint employment is similar to that of the Fair Labor Standards Act which in agriculture usually presumes a joint employment status.

Employee Coverage

To be covered by the FMLA, an employee must meet all the following criteria:

  • Have worked for the employer at least twelve months (not necessarily consecutive months; working any part of a week counts as a whole week).

  • Have worked at least 1,250 hours over the previous twelve-month period preceding leave (the twelve-month employment period does not need to be consecutive).

  • Work at a work site, or within seventy-five miles of a work site, where at least fifty workers are employed by the employer.

Under FMLA, work sites are single locations or a group of sites within the seventy-five mile area.

Basic Provisions

Employers covered by FMLA are required to permit eligible employees to take up to twelve weeks of unpaid leave during a twelve-month period for any of the following reasons:

  • For the birth of a child, or placement of a child for adoption or foster care.

  • To care for a spouse, child, or parent with a serious health condition.

  • For employee's own serious health condition that makes the person unable to work.

Family members of an employee who is an active military or National Guard member are allowed to take up to twenty-six weeks of unpaid leave for qualifying emergencies that affect the service member.

A serious health condition involves inpatient care in a medical facility or continuing treatment by a health care provider. FMLA was not designed to cover short-term illnesses like colds or flu.

FMLA requires the employer to protect the employee's job, benefits, and seniority during the FMLA leave period. The employee must be restored to the previous position, or an equivalent position, with equal pay, benefits, and other terms and conditions of the job.

Group health insurance coverage must be maintained unchanged for the duration of the leave, even if a co-payment arrangement is customary. In this situation, an employer must make arrangements for the employee on FMLA leave to continue to pay the appropriate share of health insurance premiums during the leave period.

Other benefits such as sick leave or vacation time may, but are not required to, accrue during the FMLA leave period. Be sure not to dock leave earned before the commencement of FMLA leave.

Employers may require employees to exhaust accrued vacation, sick leave, or personal leave before taking FMLA leave.

When the leave is for the birth or adoption of a child, the FMLA requires the employee to give thirty-day notice of intent to take leave. However, if the date of the birth or adoption requires leave to begin in less than thirty days, the employee must give such notice as is practicable.

Notification requirements are similar for leaves due to a serious health condition. The FMLA enables employers to require medical certification to support a request for leave because of a serious health condition. The employer may also require second or third medical opinions, at the employer's expense.

Determining Twelve-Month Period

The employer is permitted to choose any one of the following methods for determining the twelve-month period in which the twelve weeks of leave entitlement occurs:

  • The calendar year.

  • Any fixed twelve-month leave year, such as a fiscal year, a year required by state law, or a year starting on an employee's anniversary date.

  • The twelve-month period measured forward from the date of any employee's first FMLA leave begins.

  • A rolling twelve-month period measured backward from the date an employee uses any FMLA leave.

On Return from FMLA Leave

An employee is entitled to be returned to the same position the employee held when leave commenced or to an equivalent position with equivalent benefits, pay, and any other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or the position has been restructured to accommodate the employee's absence. However, the FMLA does not entitle any restored employee to (1) the accrual of any seniority or employment benefits during any period of leave, or (2) any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the position to which the employee would have been entitled had the employee not taken the leave.

If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. However, the employer's obligations may be governed by the Americans with Disabilities Act (ADA). An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits, and working conditions (e.g., privileges, perquisites, and status). It must involve the same or substantially similar duties and responsibilities which must entail substantially equivalent skill, effort, responsibility, and authority. An employer may deny job restoration to salaried eligible employees (key employees) if such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer or may delay restoration to an employee who fails to provide a fitness-for-duty certificate to return to work. Under the FMLA, a key employee is a salaried FMLA-eligible employee who is among the highest paid ten percent of all the employees employed by the employer within seventy-five miles of the employee's worksite.

Posting Requirement

Every employer covered by the FMLA is required to post and keep posted on its premises, in a conspicuous place where employees are employed, whether or not it has any eligible employees, a notice explaining the FMLA's provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the Wage and Hour Division. The notice must be posted prominently where it readily can be seen by employees and applicants for employment. In addition, if an FMLA-covered employer has any eligible employees and has any written guidance to employees concerning employee benefits or leave rights (e.g., employee handbook), information concerning FMLA entitlements and employee obligations under the FMLA must be included in the handbook or other documents. If such employer does not have written policies, manuals, or handbooks describing employee benefits and leave provision, the employer must provide written guidance to any employee concerning all the employee's rights and obligations under the FMLA. This notice must be provided to employees each time notice is given.

When Leave Is Unforeseeable

When the approximate timing of the need for leave is unforeseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is unfeasible.

In the case of a medical emergency requiring leave because of an employee's own serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer's internal rules and procedures may not be required when FMLA leave is involved. If an employee fails to give timely advance notice when the need for FMLA leave is foreseeable, the employer may delay the taking of FMLA leave until thirty days after the date the employee provides notice to the employer of the need for FMLA leave. If an employee fails to provide in a timely manner a requested medical certification to substantiate the need for FMLA leave due to a serious health condition, an employer may delay continuation of FMLA leave until an employee submits the certificate.

FMLA / Antidiscrimination Policy

Nothing in FMLA modifies or affects any federal or state law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability (e.g., Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978). FMLA's legislative history explains that FMLA is not intended to modify or affect the Rehabilitation Act of 1973, as amended; the regulations concerning employment which have been promulgated pursuant to that statute; or the Americans with Disabilities Act of 1990 or the regulations issued under the ADA.

FMLA and ADA

If an employee is a qualified individual with a disability within the meaning of the Americans with Disabilities Act (ADA), the employer must make reasonable accommodations, barring undue hardship, in accordance with the ADA. At the same time, the employer must afford an employee FMLA rights. ADA's disability and FMLA's serious health condition are different concepts and must be analyzed separately. FMLA entitles eligible employees to twelve weeks of leave in any twelve-month period, whereas the ADA allows an indeterminate amount of leave, barring undue hardship, as a reasonable accommodation. FMLA requires employers to maintain an employee's group health plan coverage during FMLA leave on the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period, whereas ADA does not require maintenance of health insurance unless other employees receive health insurance during leave under the same circumstances.

Enforcement

Failure to post an FMLA poster in a conspicuous place can result in a civil money penalty of up to $110 for each separate offense.

Eligible employees denied leave or reinstatement may file a complaint with the United States Department of Labor. They are also entitled to file a private right of action lawsuit to obtain relief.

The FMLA provides damages equal to lost wages, benefits, and other compensation as well as the interest of the amount lost calculated at the prevailing rate. Employees may also receive compensation for actual losses, such as the cost of care for children or parents, up to an amount equal to twelve weeks (of the employee's) earnings. Courts may also award employees attorney's fees and related costs.

Additional Information

  • USDL Issues Final Family and Medical Leave Act (FMLA) Regulations. FFVA Labor Bulletin, No. 502, February 17, 1995 (Report from USDL) https://www.dol.gov/WHD/fmla/

Responsible Agency

National Office

United States Department of Labor
Frances Perkins Building
200 Constitution Avenue NW
Washington, DC 20210
Toll-free 1-866-487-9243
https://www.dol.gov/whd/

Regional Office

United States Department of Labor
ESA Wage and Hour Regional Office
61 Forsyth Street, Room 6M12
Atlanta, GA 30303
(404) 562-2092
http://www.doleta.gov/regions/reg03

District and Area Offices

Fort Lauderdale Area Office
299 E. Broward Blvd., Room 408
Ft. Lauderdale, FL 33301
(954) 356-6896
Jacksonville District Office
400 West Bay Street, Room 956, Box 107
Jacksonville, FL 32207
(904) 359-9292
Miami District Office
10300 Sunset Drive, Room 255
Miami, FL 33173
(305) 598-6607 [English]
(305) 598-7471 [Spanish/Creole]
Orlando Area Office
1001 Executive Center Drive, #103
Orlando, FL 32803
(407) 648-6471
Tallahassee Area Office
325 John Knox Road, Suite D102
Tallahassee, FL 32303
(850) 942-8321
Tampa District Office
4200 West Cypress Street, Suite 444
Tampa, FL 33607
(813) 288-1242
West Palm Beach Area Office
1818 South Australian Avenue, #251
West Palm Beach, FL 33401
(561) 640-0474

Footnotes

1.

This is EDIS document FE396, a publication of the Department of Food and Resource Economics, UF/IFAS Extension. Published 2003, revised 2009 and 2017. This handbook is produced and distributed by the UF/IFAS Center for Agricultural and Natural Resource Law. Originally published by Leo Polopolus. Visit the EDIS website at http://edis.ifas.ufl.edu.

2.

Fritz Roka, associate professor, Food and Resource Economics Department, UF/IFAS Extension, Southwest Florida Research and Education Center, Immokalee, FL. Michael Olexa, professor, Food and Resource Economics Department, and director, Center for Agricultural and Natural Resource Law UF/IFAS Extension, Gainesville, FL. Carol Fountain, editor, Food and Resource Economics Department, UF/IFAS Extension, Gainesville, FL. Jessica Fernandez, graduate student, Levin College of Law, University of Florida, Gainesville, FL.

This document is designed to provide accurate, current, and authoritative information on the subject. However, since the laws, administrative rulings, and court decisions on which it is based are subject to constant revision, portions of this publication could become outdated at any time. This publication is distributed with the understanding that the authors are not engaged in rendering legal or other professional advice, and the information contained herein should not be regarded as a substitute for professional advice. For these reasons, the utilization of these materials by any person constitutes an agreement to hold harmless the authors, the Institute of Food and Agricultural Sciences, and the University of Florida for any liability claims, damages, or expenses that may be incurred by any person as a result of reference to or reliance on the information contained in this publication.


The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information and other services only to individuals and institutions that function with non-discrimination with respect to race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations. For more information on obtaining other UF/IFAS Extension publications, contact your county's UF/IFAS Extension office.

U.S. Department of Agriculture, UF/IFAS Extension Service, University of Florida, IFAS, Florida A & M University Cooperative Extension Program, and Boards of County Commissioners Cooperating. Nick T. Place, dean for UF/IFAS Extension.