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 does not cover minor injuries or transient illnesses. 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 an in-patient, a “serious health condition” typically involves three (3) days of incapacity (inability to go to work, school, etc.). It also requires at least two (2) trips to a healthcare 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 FMLA 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 available, subject to your employer’s policies.
Qualifying employers under FMLA must:
- 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. Additionally, you may take leave to care for someone 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, you can take FMLA leave intermittently, but your condition or qualifying event must necessitate it.
Yes. In general, your employer may pay your vacation pay as part of your 12 weeks of FMLA family leave. However, the employer does not have to do so. The employer also does not have to allow you over 12 weeks of combined paid (vacation) and unpaid leave.
Your employer may set the requirements for returning to leave. For instance, they can require you to submit a medical release or “fitness for duty” certification. It comes from a healthcare provider that shows your ability to work.
Your normal health insurance plan must continue to run. If your employer has paid the full premium, he must continue to do so as he 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.
You must provide “reasonable” notice. Therefore, you must give your employer 30 days of advance notice. This is if it is reasonably possible to plan that far in advance (a scheduled surgery, for instance). If a medical situation arises unexpectedly or suddenly, you should promptly notify your employer.
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. You must make the request traceably (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. While on FMLA leave, your employer cannot terminate or penalize you for not meeting production requirements. However, other adverse actions that occur for reasons other than FMLA are legal. For instance, you are not exempt from termination.
Even if your entire department undergoes elimination during that time. Your FMLA request will not shield you from discipline if your employer has already disciplined you for poor behavior or performance.
Consult a good employment lawyer, such as DeLong, Caldwell, Bridgers, Fitzpatrick & Benjamin, LLC to help you out.