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FMLA: The Family and Medical Leave Act

  • Synopsis: Published: 2012-09-14 - Information regarding The Family and Medical Leave Act (FMLA) which entitles eligible employees to take unpaid leave while protecting their jobs for family and medical reasons - Wendy Taormina-Weiss.
The Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) - The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

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The Family and Medical Leave Act (FMLA) entitles employees who are eligible through covered employers to take unpaid leave while protecting their jobs for specific family and medical reasons with continuation of group health insurance coverage under the same conditions and terms as if they had not taken leave. Employees who are eligible are entitled to a number of things such as twelve weeks of leave during a twelve month period of time for the birth of a child and to provide care for their newborn within one year of their child's birth.

The entitlement provides eligible employees with the same period of time for the placement with the employee of a child for foster care or adoption, as well as to care for their newly placed child. FMLA provides employees with this period of time to care for their spouse, child, or a parent who is experiencing a serious health condition, or a health condition the employee is experiencing that finds them unable to perform the essential functions of their job. The period of time through FMLA is available for any qualifying exigency that has arisen out of the fact that the employee's spouse, child, or parent is a covered military member on active duty. FMLA provides twenty-six weeks of leave during any twelve-month period of time to provide care for a covered service member who is experiencing a serious injury or illness.

In general, FMLA entitles qualified employees to leave when they or their loved ones experience serious health issues. The purpose of FMLA is somewhat different from that of the Americans with Disabilities Act (ADA). While FMLA provides employees who qualify with a benefit they can use when needed, the ADA is there to provide equal employment opportunities for employees who experience forms of disabilities.

Employees, Coverage, and Eligibility for FMLA

The Family and Medical Leave Act (FMLA) gives employees the ability to balance their working and family lives by taking up to a dozen weeks of unpaid leave while protecting their jobs for certain family and medical reasons. FMLA applies to every state, local, and federal employer, as well as local educational agencies. It also applies to private sector employers who employ more than fifty people for at least twenty work weeks in the current or preceding calendar year, to include joint and successor employers. In order to be eligible for FMLA, employees who work for covered employers must:

  • Have worked for their employer for at least twelve months
  • Have worked at least 1,250 hours during the twelve months prior to the beginning of their FMLA leave
  • Work at a location where at least fifty employees are employed at the location or within seventy-five miles thereof

All of the time a person works counts towards the required twelve months of employment. The 1,250 hours that are required can be satisfied in various ways, to include regular full-time work, working twenty-four hours per week for fifty-two weeks, or working one hundred and four hours per month for twelve months. Covered employers have to grant employees who are eligible a total of twelve workweeks of unpaid leave in a twelve-month period for any one of the following reasons:

  • The birth of a child and the care of their newborn
  • The care of an immediate family member who is experiencing a serious health condition
  • The placement of a child with the employee through foster care or adoption and the care of the child
  • An employee's own care, therapy, or recuperation when they find themselves unable to work due to a serious health condition
  • The exigencies arising when a family member who is a member of the regular or reserve components of the Armed Forces is deployed to a foreign nation

FMLA allows twenty-six weeks of unpaid leave for family members who are veterans in need of medical treatment, therapy, or recuperation for a serious illness or injury incurred through active duty service. Leave through FMLA to provide care for a newborn child, or a newly placed child, has to conclude within twelve months after the child's birth or placement. Spouses who are employed by the same employer are jointly entitled to a combined total of twelve workweeks of family leave for the birth or placement of a child and the care of their child, as well as the care of a parent who is experiencing a form of serious health condition.

FMLA and the Definition of, 'Serious Health Condition'

The FMLA's definition of a, 'Serious Health Condition,' means an injury, illness, impairment, mental or physical condition involving one of the following:

  • Any period of incapacity due to pregnancy or for prenatal care
  • Any period of incapacity or treatment for a serious chronic health condition such as diabetes, asthma, epilepsy etc.
  • Any period of incapacity or treatment connected with inpatient care such as an overnight stay in a hospital, residential medical care facility, or hospice care
  • A period of incapacity that is permanent or long-term due to a condition for which treatment might not be effective such as stroke, Alzheimer's, terminal diseases etc.
  • A period of incapacity requiring an absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by, or under the supervision of, a health care provider
  • Any absences to receive multiple treatments, including related recovery periods, by or on referral by, a health care provider for a condition that would likely result in incapacity of greater than three consecutive days if it remained untreated, such as physical therapy, chemotherapy, dialysis etc.

FMLA and Intermittent, Reduced Schedule, or Paid Leave

The Family and Medical Leave Act (FMLA) allows employees to take leave on an intermittent basis or to work a reduced schedule such as a four day week or a six hour day under some circumstances, to include for providing care for family members who are seriously ill or because of a serious health condition the employee is experiencing. An intermittent or reduced schedule leave might be taken in order to provide care for a newborn child or a newly placed child with an employer's approval. Employees who need an intermittent or reduced schedule leave for medical treatment have to work with their employer to schedule leave so it does not disrupt their employer's operations and meet the approval of their employer's health care provider. If the intermittent or reduced schedule leave would disrupt the employer's operations, the employer might instead transfer the employee on a temporary basis to an alternative job with equal pay and benefits that better accommodates the employee's recurring periods of leave.

An employee might choose to use, or an employer may require an employee to use, accrued paid leave to cover some or all of the FMLA leave the employee takes. Employers might choose or require the substitution of accrued paid vacation or personal leave for any of the situations that are covered by the Family and Medical Leave Act. The substitution of accrued sick or family leave is limited by an employer's policies related to the use of leave.

FMLA Leave Notification, Certification, and Returning to Work

An employee might be required to provide thirty days notice of their need to take FMLA leave when their need is foreseeable. When an employee needs leave and it is not foreseeable, they should provide notice to their employer as soon as is practicable, usually within one or two days of learning of their need to take an FMLA leave. Their employer might require that a leave request for a serious health condition on the part of the employee or their immediate family member be supported by a certification issued by a health care provider. The Department of Labor has a form for this purpose. An employer may not make broad requests for medical records; however.

After an employee returns from FMLA leave their employer has to restore them to their original job or an equivalent one. What this means is the job must be virtually identical to the original job the employee held in terms of pay, benefits, and additional terms and conditions of employment. An employee's use of FMLA leave may not result in the loss of any employment benefit the employee has earned or was otherwise entitled to prior to their taking FMLA leave. Under limited circumstances, an employer might refuse to reinstate certain highly paid and salaried employees if doing so would cause a substantial and grievous economic injury to the operations of the employer.

Citations and Resources:

FMLA Information or Complaints
www.dol.gov/esa.fmla.htm

For additional information about the FMLA or to file an FMLA complaint, individuals should contact the nearest office of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor.

The Family and Medical Leave Act
www.nalc.org/depart/cau/fmla.html

In November 2008 the Department of Labor (DOL) published its Final Rule to implement the first-ever amendments to the Family Medical Leave Act (FMLA).

The Family and Medical Leave Act (FMLA)
fmlaonline.com/

Created in 1993, the Family and Medical Leave Act offers employees up to 12 weeks of excused absence from their jobs every year. It was enacted to aid employees in balancing work and personal obligations, without having to choose between the two in times of crisis.

Related Information:

  1. Family and Medical Leave Act - Unpaid Leave - The Family and Medical Leave Act is a federal law that permits employees to take up to 12 weeks of unpaid leave.
  2. Disability Discrimination Law to be Explained in EEOC Commissioners Tour - Commissioners of Equal Employment Opportunity Commission U.S. tour to explain and discuss Americans with Disabilities Act Amendments Act (ADAAA).
  3. Rights of People Leaving Work Due to Disability - Explains the rights of people leaving work due to medical conditions or disability including healthcare coverage.


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