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by John D. Sours

President Clinton signed the Family and Medical Leave Act of 1993 ("FMLA") into law during the first week after his inauguration. This law has tremendous impact on employers and employees, yet it is still vastly misinterpreted and applied � which can cost employers and employees considerable time, money and trouble.

The most publicized aspects of FMLA permit certain employees, male or female, to take unpaid time off for childbirth or serious illness. The extent of unpaid time off permitted is a maximum of twelve weeks during any twelve-month period. Other employees eligible for up to twelve weeks of unpaid leave during a twelve-month period include those who:

have adopted a child
have taken in a foster child, or
need to care for a seriously ill child, spouse or parent.

To be eligible, an employee must have been on the payroll at least one year and must have worked at least 1,250 hours during the preceding twelve months. During the leave period, employees need not be paid but are entitled to health care and other benefits. Spouses who work for the same employer may receive a total of twelve weeks leave for the birth or adoption of a child. Upon termination of the leave, employees are generally entitled to reinstatement to the same or an equivalent position.

Important Exemptions

The regulations provide for certain important exceptions which may apply to many ISOs in the Transaction Processing Industry. For example, in many industries, independent contractors have no obligation to reinstate employees who have been laid off or they were originally hired only for a specific term or to perform work on a particular project, and the specific term or particular project ends by the time the employee�s leave ends.
Another rule exempts all employers with operations where fewer than 50 employees have worked within a 75-mile radius for each

workday through 20 or more consecutive calendar weeks. This exemption is currently estimated to apply to nearly three-fourths of all domestic employees.
A further exception pertains to employees among the highest paid 10% of the employer�s work force. Employers are not obligated to restore these high-income employees to their old jobs if they can establish that reinstatement would cause �substantial and grievous� economic harm. Office, warehouse and other more permanent administrative and clerical employees are not exempted. Field employees and upper managers could be.
All leave covered under FMLA is without pay. Also, covered employees do not have any right under FMLA to accrue seniority or other employment benefits during their time off.

Avoid Costly Damages

Employers that violate FMLA are liable: 1) for damages equal to the value of lost or denied compensation or benefits, or 2) for any employee�s actual monetary losses (such as, for example, the cost of providing care by a third party to a family member).
Employers covered by FMLA should strictly police eligibility rules and keep careful, complete records. This administration also applies to fast-growing businesses that might reach the minimum coverage threshold in the near future.

John D. Sours is a founding partner with Wasson, Sours & Harris, PC, an Atlanta-based law firm specializing in the practice of employment law. To contact Mr. Sours, email [email protected].