The Family and Medical Leave Act is a federal law that enables qualifying employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. It requires the employer to continue the employee’s group health insurance coverage during the leave under the same terms as would apply if the employee was not taking FMLA leave. It also forbids job retaliation for taking or seeking FMLA leave.
To qualify for FMLA leave, you must meet all of these conditions:
- Your employer must have 50 or more employees on the payroll for at least 20 workweeks during the current or preceding calendar year. These 50 employees need not be only at your worksite, but your employer must have at least 50 employees across all of its worksites within a 75-mile radius of your employment location.
- You must have worked for your employer for at least 12 months and for at least 1,250 hours during the last year.
- Your reason for the leave must be to address your own “serious health condition,” or the “serious health condition” of a covered family member, or to care for a new child, or for a wounded service member in your family or to address particular circumstances arising from a covered family member’s military deployment or call to active duty in the armed forces.
You can take a family/medical leave at the occurrence of any of the following:
- If you have a serious health condition
- If you are caring for your new baby or caring for a newly adopted or newly placed foster child
- If you are caring for your child, spouse or parent who has a serious health condition
- If you are caring for a wounded servicemember or veteran
- If you need time away from your job to address particular circumstances arising from the deployment of a servicemember or a member of the armed forces.
No. The FMLA is not meant to cover minor injuries or transient illness. The law requires a “serious health condition.”
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves: 1) inpatient care in a hospital, hospice, or residential medical care facility or 2) continuing treatment by a health care provider. If you are not treated as in in-patient, a “serious health condition” typically requires three (3) days of incapacity (inability to go to work, school, etc.) and at least two (2) trips to a health care provider. There are special rules for pregnancy; chronic health conditions like asthma, diabetes, etc.; long term conditions like Alzheimer’s; receiving multiple treatments, like dialysis or chemotherapy, to avoid longer term harm; or only seeing the doctor once but taking prescribed medication afterward.
You can take family leave, medical leave or qualifying military exigency leave, or any combination of the three.
You can take up to 12 weeks per year. However, military family members may have 26 weeks of leave in a year to care for a wounded service member.
Once you exhaust your FMLA leave, your employer can legally terminate your employment.
FMLA regulations allow an employer to determine that year in several ways including calendar years, fiscal years, a work anniversary, a “look back year” (i.e. counting 12 months backwards from the first day of the requested leave to determine the number of days already used in that period and the number of days of FMLA leave remaining), or some other arbitrary yearly date. The employer must decide in advance how it will define the year and, generally, cannot alter that method for an employee once a leave has begun.
The following category of persons qualifies as family according to the definition of FMLA:
- Your children when they are born, adopted, placed under your care as your foster child, or when they have a “serious health condition;”
- Your own parents when they have a “serious health condition;”
- Your spouse when he or she has a “serious health condition;”
- Your next of kin (for wounded servicemember leave only).
The FMLA does not require your employer to pay you during leave. You may be entitled to use any accrued paid annual, vacation or sick time that your employer makes available, subject to your employer’s policies.
Qualifying employers under FMLA are required to:
- Post a notice about FMLA where employees can see it and send copies of the notice to the U.S. Department of Labor’s Wage and Hour Division.
- Give you information about the medical certification and other requirements that will apply to your specific leave when you request family or medical leave under the FMLA.
However, if your employer fails to post the notice about FMLA, you cannot be penalized if you do not give your employer advance notice that you will need leave. Also, the U.S. Department of Labor can fine your employer if its failure to post the notice was intentional.
No. Under the FMLA you can only take leave to care for someone who is a biological or adoptive parent, or who acted as your parent when you were a child.
Yes, you can take a leave under FMLA in a single block of time.
Yes, FMLA leave can be taken intermittently, if that is required by your condition or qualifying event.
Yes. In general, your employer may pay your vacation pay as part of your 12 weeks of FMLA family leave; but the employer does not have to do so, nor is the employer required to allow you over 12 weeks of combined paid (vacation) and unpaid leave.
Your employer may set the requirements for returning to leave such as, by requiring you to submit a medical release, also called a “fitness for duty” certification, from a health care provider that shows your ability to work.
Your normal, health insurance plan must continue to run. If your employer has been the one paying the entire premium for the insurance coverage, he must continue to pay for your health insurance coverage as he normally would if you remained working.
No. You may keep the same seniority you had accrued before you went on leave when you return from leave. However, you may not earn accrue additional seniority while on leave.
“Reasonable” notice is required. Therefore, you must give your employer 30 days of advance notice if it is reasonably possible to plan that far in advance (a scheduled surgery, for instance). If the medical situation is unexpected or sudden, you should inform your employer as soon as possible.
Always attempt to follow your employer’s policies and practices for requesting FMLA leave. If those practices are not clear, ask specifically for FMLA leave in some traceable way (a text message or email for instance). If your employer states you are not eligible for FMLA leave, ask why not.
An employer can require medical documentation showing you or a family member have a “serious health condition.” However, an employer does not a right to know the specific condition requiring the medical leave, or to talk with your doctor, or to gather medical records beyond a medical certification.
An employer cannot retaliate against you for taking or asking for FMLA leave. You cannot be let go or penalized for not making production while on FMLA leave. However, other adverse actions that occur for reasons other than FMLA are legal. For instance, if your entire department is eliminated while you are on FMLA leave, you are not shielded from termination. If the employer already decided to discipline you for poor behavior or performance before you asked for FMLA leave, your request for FMLA leave will not shield you from the discipline.
Consult a good employment lawyer, such as DeLong, Caldwell, Bridgers, Fitzpatrick & Benjamin, LLC to help you out.