The Family and Medical Leave Act: impact on the law enforcement employer

FBI Law Enforcement Bulletin,The, Jan, 2006 by Richard G. Schott

In 1993, Congress passed and President Bill Clinton signed into law the Family and Medical Leave Act (FMLA). (1) It was enacted to address the concern that people were sometimes losing their jobs when they missed work due to a serious illness or family crisis. The law is undoubtedly popular with the 50 million employees who have used its provisions during the past 12 years. (2) Conversely, some employers view the legislation as a strain on efficient day-to-day operations of the workplace, a burden on other workers who must compensate for absent coworkers, and a vehicle of abuse for some employees who manipulate it for personal time. There may be some reality in each of these conflicting perceptions of the FMLA. This article outlines the major provisions of the FMLA and illustrates how they impact the law enforcement employer.

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The FMLA entitles eligible employees to a minimum of 12 weeks unpaid leave during any 12-month period because of their own serious health condition; to care for certain family members who have a serious health condition; or because of the birth of a child (and for the care of the child), or the placement of a child for adoption or foster care. (3) As self-explanatory as this language seems, disputes often arise over the meaning of certain terms used in the FMLA. For example, who are the eligible employees entitled to benefits? What is a serious health condition? For which family members can an employee take FMLA leave to provide care? How must FMLA leave be taken? The common theme that emerges when answering these questions is that when it passed the FMLA, Congress did not intend to cause a hardship on employers who could not afford to be without employees for up to 3 months during a 1-year period.

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WHAT EMPLOYEES ARE ELIGIBLE?

To balance the interests of the employer in maintaining a set workforce and the personal situations of employees, there are limitations on the eligibility for FMLA leave. For employees to invoke protection under the FMLA, they must work for an employer to whom the provisions of the act apply. There usually is no guesswork involved in this determination for the law enforcement agency. While a private employer only is governed by the FMLA when it is "engaged in commerce [and] employs fifty or more employees for each working day during each of twenty or more calendar workweeks in the current or preceding calendar year," (4) the FMLA applies to all public agencies. A public agency is defined as "the government of the United States; the government of the state or political subdivision of a state; or an agency of the United States, a state, or a political subdivision of a state, or any interstate governmental agency." (5) The only exclusion from the FMLA for a public agency is if the employee invoking the act is "employed at a worksite at which [the] employer employs less than fifty employees if the total number of employees employed by that employer within 75 miles of that worksite is less than fifty." (6) Because for this calculation a state or political subdivision of a state constitutes a single public agency, and, therefore, a single employer (for example, a state, a county, a city, or a town is a single employer), this calculation usually does not relieve even the smallest law enforcement agencies of compliance with the FMLA. As a result, the crucial factor determining whether a law enforcement agency employee is entitled to FMLA coverage is the status of the individual employee.

Eligible employees are individuals who have been employed for at least 1 year by the employer, and for at least 1,250 hours of service with such employer during the previous 12-month period. (7) In attempting "to balance the demands of the workplace with the needs of families," (8) Congress stipulated that workers only become eligible for FMLA coverage after being employed for 1 year. Additionally, the 1,250 hours-of-service provision serves to exclude part-time and seasonal workers from FMLA coverage. It would seem that determining the number of hours worked by someone would simply be a matter of mathematics. However, calculating the number of service hours expended for an employer can be complicated. Law enforcement employers must consider factors, such as time spent on leave, time spent on call, and time spent training when determining whether an employee has worked the requisite number of hours.

When Congress enacted the FMLA, it directed courts to use the "legal standards established under section 207 of this title" (9) to determine whether an employee had met the hours of service requirement. (10) The Supreme Court long ago pronounced that work for purposes of the Fair Labor Standards Act (FLSA) (and, by reference, hours of service for the FMLA) (11) means "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer ...." (12) This definition should be considered when calculating whether leave, being on call, and training sessions constitute time spent working for a law enforcement employer.