Job Protection Clause of the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) gives eligible employees time off work for a serious health condition or that of a family member. Employees are entitled for up to 12 weeks per year of unpaid leave or up to 26 weeks per year for the care of a service member under the provisions of the Act. Eligibility depends on size of the employer’s workforce, the employee’s tenure with the company and whether the employee meets the threshold of 1,250 hours worked in a year. The FMLA provides much more than time off to tend to an employee’s medical condition or a family member’s serious health condition – the FMLA gives employees peace of mind in knowing their employment status will not suffer as a result of taking a leave of absence. The job protection clause of the FMLA assures employees they will be restored to the same or similar role upon their return to work.

Medical Condition

Employees who request FMLA leave may use up to 12 weeks of unpaid leave to provide care for their children, parents or spouse, or for their own serious health condition, or to provide care during the birth or adoption of a child. An attending physician must provide sufficient documentation that substantiates the employee’s request for time off. Under FMLA, pregnancy is treated as a serious health condition which is the reason FMLA leave expands to cover working women who need time off for childbirth. The Pregnancy Discrimination Act provides further job protection from discrimination against pregnant women in the workplace.

Unpaid Versus Paid Leave

Few employers offer paid FMLA leave. The law doesn’t require that employers compensate employees during their FMLA leave; therefore many employees elect to take vacation time or paid time off to continue receiving some sort of pay during their leave of absence. According to a 2008 report compiled by U.S. Sen. Charles E. Schumer (D-N.Y.) and U.S. Rep. Carolyn B. Maloney (D-N.Y.), just 8 percent of employers in the U.S. provide paid FMLA leave. In addition, their report, titled “Paid Family Leave at Fortune 100 Companies: A Basic Standard But Still Not the Gold Standard,” reports that even when state law mandates paid leave for some employees, the federal job protection clause is not a part of the leave program. Offering employees leave – unpaid or paid – strengthens the job protection clause.

Job Protection Clause

In most circumstances, the federal FMLA regulations provide for job restoration. Job restoration means that, upon the employee’s return to work, she must be restored to the position she held prior to going on FMLA leave. In the alternative, she must be placed in a job equivalent to the one she was in when her leave of absence began.

For example, an administrative secretary whose annual salary is $50,000 must be restored to either the same job or another administrative secretarial role where she is compensated an equivalent amount. An employer who restores her employment to a job that has far less autonomy and latitude with an annual salary of $45,000 risks violating FMLA provisions. The job protection clause differs for highly compensated employees, however. Employers who believe restoring the employee on leave to her original position would be unduly burdensome and costly, are not obligated to adhere to the job protection clause. Often, highly compensated employees who must take FMLA leave understand the possible loss of job restoration benefits and resign their post in the interest of the company filling a vacancy for purposes of business continuity.

Continuation of Benefits

In addition to the job protection clause that assures most employees they will be restored to the position they left or an equivalent position, FMLA leave provides for continuation of many employment benefits. During an employee’s leave of absence, he is eligible for the employee portion of health insurance. Employers continue to contribute their share of the benefits costs but if the employee is not receiving a paycheck from which the employer can deduct the employee’s share of the insurance premium, the employee must remit payment to the employer. Even if the employee does not remit payment and allows the health insurance to lapse during this time, group health care benefits must be reinstated upon the employee’s return to work.