FMLA: Job Protected Leave to Care for Yourself or a Family Member

How It Started

The Family and Medical Leave Act (FMLA) was passed in 1993 under President Bill Clinton. FMLA provides job-protected unpaid leave to individuals for their own serious health condition, to care for a family member with a serious health condition, for the birth or adoption of a child OR for qualifying circumstances that arise due to a spouse's deployment with the National Guard or Reserves. Although their have been many changes to the original law, the intent remains the same. Many of the changes made have either enhanced the protections afforded the by the law and/or clarified the ambiguity found in the initial law. The information below incorporates the changes published in 2008.

Who's Covered

The FMLA applies to employers with more than 50 employees and to employees who have worked at least 1,250 hours in the 12 months preceding the requests. Basically, individuals who work at least 25 hours per week. Part-time workers will less hours are not covered by this law. Leave may be taken for one of the following reasons:

What is a Serious Health Condition?

This can sometimes be one of the most confusing areas of the law. Some conditions, such as pregnancy, childbirth, adoption and/or surgery are quickly seen to be covered. Other conditions may need to be evaluted to see if they fit one of the definitions in the law. A "serious health condition" is defined in six different ways by the FMLA as described below.

• Inpatient care in a hospital or other residential medical facility or care required after such a stay
• Continuing treatment by a healthcare provider which includes any period of incapacity related to pregnancy or for prenatal care.
• Any period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. Supervision by a health care provider is required
• Any period of incapacity or treatment for a chronic serious health condition. The chronic condition must last over a period of time, must require periodic visits to a healthcare provider and may involve periods of incapacity.
• Any absences to receive multiple treatments for a condition that would likely result in a period of incapacity of more than three days if not treated.
• A period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also includes: treatment two or more times by or under the supervision of a health care provider;or one treatment by a health care provider with a continuing regimen of treatment

How Long?

Once you have figured out that you are covered by the law, your next concern will be the length of your leave. The amount of leave that you are entitled to take can be affected by multiple factors. If your need for leave is not related to the care of a relative who was injured while on active duty, you are entitled to twelve (12) weeks of leave. If you and your spouse work for the same employer then the two of you can take a total of twelve (12) weeks of leave combined for the same condition. For example, if you and your spouse adopt a child, you could structure your leave in one of the following ways:

• The mother could take twelve(12) weeks of leave
• The father could take twelve (12) weeks of leave
• The mother could take six (6) weeks of leave and the father could take six (6) weeks of leave for a combined total of twelve (12) weeks of leave.

If however, you and your spouse have different conditions/reasons for the leave, then the combined total would not apply and you would both be entitled to twelve (12) weeks of leave. In all cases, the leave can be taken all at once or intermittently. Communication with your employer can help you understand their policies in this area.

Notice Requirements

Under FMLA, the employee is required to give 30 days advance notice if the need for the leave is known in advance. In some situations, this is easy to do. For instance, if you are having a child, you will easily be able to provide your employer with advance notice. Of course, sometimes you will not know in advance. In those situations, you must inform your employer as soon as you know. Please note, even when taking FMLA leave, you must still follow the policies and procedures your employer has in place for reporting absences.

The employer also has notice requirements to meet. The employer must post a notice about your rights under the FMLA in the workplace and must include this in any employee handbooks. Also, once you request leave under FMLA, your employer must assess if you are eligible for FMLA and then designate the time away from work as FMLA leave.

Certification

As you might expect, your employer is not required to take your word for the need for time away from work and is allowed under the law to have the leave request certified by a doctor. The US Department of Labor has made forms available to all employers to use and you can see a sample of waht to expect by clicking here. Employers are allowed to ask for the need for leave to be re-certified periodicially and to request a doctor to certify that you are "fit for duty" upon completion of the leave as long as these policies are in place and uniformly applied.

Leave Related to Family Members in the Military

One of the great additions to the law in 2008 deals with extending the leave available to those caring for family members injured while on active duty and to the special needs of those who relatives are deployed. In my opinion, it is one more way that our country can support the fine men and women who serve in our military and their families. If you are eligible for leave under FMLA as described above, but are caring for a family member injured while on active duty, the leave amount is extended from twelve (12) weeks to twenty-six (26) weeks as "Military Caregiver Leave". Additionally, the law added a "Qualifying Exigency Leave" for family members of those in the National Guard or Reserves. This leave may be used for the following reasons:

• Short-notice deployment
• Military events and related activities
• Childcare and school-related activities
• Financial and legal arrangements
• Counseling
• Rest and recuperation
• Post-deployment activities

• Other activities not listed here, but agreed to by the employer and employee

The exigency leave avaialble is a total of twelve (12) weeks.

Health Insurance While on Leave

Your employer is required to maintain your coverage while you are on leave, but you are required to pay your share of those premiums. So, if you normally have $150.00 per pay period deducted from your pay when you are at work, you will be responsible for paying that amount per pay period while you are on leave. If you do not return to work, your employer may potentially be able to recover the premiums they paid while you were on leave.

Job Restoration

This is, in my opinion, the most important facet of the FMLA. It basically means that you get to keep your job even though you had to take leave. You have to be returned to your job or a job that is equivalent in pay, benefits and other terms of employment. Please remember, if there are any actions that would have been taken had you not been on leave - such as a layoff - you may not be entitled to job restoration.

Paid or Unpaid?

It is important to note that although the law provides protection for unpaid leave, your employer may require that you use all paid leave available to you while on leave. It is best to consult with your Human Resources Department or supervisor to find out how your company handles this issue.

Final Thoughts

The Family and Medical Leave is a law that provides protection to those who truly need to take leave from work for their own health or the health of a family member and, if navigated correctly, can ease your stress during a time of crisis. It is critical that you communicate with your employer about your situation so that you are following their policies and procedures in this area. The FMLA affords us all great protections but can be tricky, so when in doubt - ASK!

If you would like to read more about other laws and how they affect you at work, please click here to visit my other labor law hubs.