The Legal Environment of Human Resources Management 65
Family and medical leave is available as the result of the birth or
adoption of a child or the placement of a child for foster care; to care for
a spouse, child, or parent with a serious health condition; or to accom-
modate the disabling illness of the employee. To be eligible for the leave,
an employee must have worked for at least twelve months and for at least
1,250 hours during the year preceding the start of the leave.
The law requires employers to maintain coverage under any group
health plan under the condition that coverage would have been pro-
vided if no leave was taken. When the leave ends, employees are entitled
to return to the same jobs they held before going on leave or to equiva-
lent positions. An equivalent position is defi ned as a position having
the same pay, benefi ts, and working conditions and involves the same
or substantially similar duties and responsibilities. Employees must be
restored to the same or a geographically proximate work site.
Not all employees are eligible for leave under FMLA. An employee
who qualifi es as a key employee may be denied restoration to employment.
A key employee is salaried and is among the highest - paid 10 percent of the
employees at the work site. Employees must be notifi ed by the employer of
their status as a key employee if there is any possibility that the employer
may deny reinstatement. Employees are required to give thirty days ’
advance notice of the need to take family and medical leave when it is
foreseeable for the birth of a child or the placement of a child for adoption
or foster care or for planned medical treatment. When it is not possible to
provide such notice, employees must give notice within one or two business
days of when the employee learns of the need for leave.
Employers can require a medical certifi cation from a health care
provider to support leave requests. Employees who are denied leave or
reinstatement at the end of leave in violation of the law may fi le a com-
plaint with the Department of Labor. Employees may also fi le a private
lawsuit against the employer to obtain damages and other relief.
The FMLA does not supersede any state or local law that provides
greater family or medical leave rights. Employers covered by both federal
and state laws must comply with both. In Nevada Department of Human
Resources v. Hibbs (2003), the Supreme Court upheld the right of state
employees to sue their employers (state governments) in federal court for
alleged violations of the FMLA.
On January 28, 2008, President George W. Bush signed into law the
National Defense Authorization Act of 2008, which expands FMLA for
military families. An employee may take up to twelve weeks of unpaid FMLA
leave for any qualifying exigency related to a spouse, son, daughter, or