Vol. 2001-7 July, 2001


The Family Medical Leave Act, has had serious implications for certain employers. Effective August 5, 1993, employers subject to the FMLA are required to provide accommodations to eligible employees for certain family or medical reasons. If an employer fails to provide an eligible employee with the benefits provided in the Act, then the employer may be charged by the Wage and Hour Bureau with unlawful violations of the Act, and the employer may be civilly liable to the employee.

First, the Act applies to all public agencies, including State, local and Federal employers, as well as all public schools. The Act is much narrower in its reach of private institutions. Only those private employers that employ 50 or more employees for at least 20 work-weeks in the current or preceding year, including joint employers who match that criteria and successors of covered employers are regulated by the Act.

Secondly, only those employees that meet all the following criteria are eligible to receive benefits under the Act, those who: (1) have worked for at least a total of 12 months for their employer; (2) have worked at least 1,250 hours over the previous 12 months; and, (3) work at a location where at least 50 employees are employed by their employer within 75 miles.

Under the Act, a covered employer must grant an eligible employee up to 12 work-weeks of unpaid leave during a 12-month period, if the employee experiences one or more of the following: (1) the birth or placement of a child for adoption or foster care; (2) a serious health condition[1] suffered by an immediate family member which the employee must care for; or, (3) a serious health condition suffered by the employee which makes it impossible to work.

Under some circumstances, eligible employees are permitted to take their leave intermittently (in blocks of time) or by reducing their weekly or daily schedule.

The Act further requires covered employers to maintain group health insurance for an eligible employee, if that coverage was provided prior to a FLMA leave. Moreover, any benefits received by the employee prior to a FMLA leave must be maintained, and the period of leave must not be considered a break in service. Lastly, and perhaps most importantly, the Act requires that the employee upon returning from a FMLA leave be permitted to resume his original position or one of equivalent pay and benefits.

Employers are permitted to deny job restoration to certain “key” employees who give notice of their intent to take a FLMA leave, if restoration would result in substantial economic injury. However, only those employees that are salaried and among the highest paid ten percent of employees within 75 miles of the work site are considered “key” employees. Furthermore, employers must follow certain guidelines when presented with a notice by a “key” employee to be able to implement this exception.

Contractors may now assert the right to recover construction losses arising from errors in a design professional’s construction documents, even though the contractor and the Architect or Engineer may have had no contractual relationship.

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Fn.: [1] Defined as an incapacity or treatment requiring inpatient care, an absence of more than 3 days from regular daily activities due to an incapacity that involves continuing treatment, or continuing treatment for a chronic or serious condition that is incurable or would result in an incapacity of more than 3 days.

Author:  J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He has had experience in business, Construction, Real Property, Litigation and Construction-Legal Project and Crisis Management.


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