Family and Medical Leave Act (FMLA)

Ohio does not have a state law in regards to Family and Medical Leave.  All claims in Ohio are based on the Department of Labor's Family and Medical Leave Act ("FMLA").

What employers are required to abide by the FMLA?  Those employers with 50 or more employees within 75 miles of the company's work site are required to provide FMLA leave to their employees, this is commonly called the "50/75 rule".  In Ohio, if an employer has 49 or less employees they are not required to follow the FMLA.  However, an employer with less than 50 employees could subject themselves to the FMLA regulations by promising such leave in their employee handbook (Reaux v. Infohealth Management Corp., Illinois District Court).  The law covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the "50 employee" test. Title II of FMLA covers most federal employees, who are subject to regulations issued by the Office of Personnel Management.

Be aware of another situation: a person works for a staffing agency that has 50 or more employees (covered under FMLA) but the company that the staffing employee is working for does not have to abide by the FMLA because they do not have 50 or more employees.  According to DOL and Grace v. USCAR, the primary employer (staffing agency) has the responisbility of offering and granting leave, and informing employees about their rights.  But the "secondary employer" (the company) is responsible for putting an eligible employee back into his or her previous assignment.

What employees are eligible?  Employees who have worked for at least 12 months and at least 1250 hours during the previous 12 months.

What does the FMLA provide to eligible employees?  Up to 12 weeks of unpaid leave in a 12 month period for the serious health condition of the employee or a family member, for the birth or adoption of a child, or because a child, parent or spouse of the employee has been called to active duty in the military.  Up to 26 weeks of unpaid leave during a 12 month period to care for a spouse, child or parent who is an injured member of the military.

What is a serious health condition?  The concept of serious health condition is key to several types of leave under the FMLA. An eligible employee is entitled to FMLA leave when the employee is unable to perform the functions of the job because of the employee's own serious health condition or when the employee is needed to care for a spouse, son, daughter or parent with a serious health condition.  In short, a "serious health condition" entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves either (1) inpatient care or (2) continuing treatment by a health care provider.  Continuing treatment has numerous scenarios which include the following:
1. Incapacity and treatment
2. Pregnancy or prenatal care: any period of incapacity due to
3. Chronic conditions: 2 visits a yr. for treatment or continues over an extended period of time; and may cause episodic rather than a continuing period of incapacity (asthma, diabetes, epilepsy, etc.)
4. Permanent or long term conditions (Alzheimer’s, severe stroke, terminal states of a disease).
5. Multiple treatments: period of absence to receive multiple treatments or a condition resulting in period of incapacity of more than three consecutive, full calendar days (cancer: chemotherapy, radiation, etc), severe arthritis (physical therapy), or kidney disease (dialysis).
6. Substance Abuse: only treatment of substance abuse. An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.

The following conditions ordinarily do not qualify as serious health conditions: common cold, flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc. However, if complications arise and any of these conditions meet the requirements they will be considered serious health conditions.

An employer can require or an employee can voluntarily elect to use paid leave benefits during FMLA leave.  FMLA leave can not count towards no-fault attendance policies.
 
The potential penalites for employers violating the FMLA is back pay, reinstatement, benefits, and attorneys' fees.