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Family and Medical Leave Act (FMLA) - What You Need To Know

Pursuant to the Family and Medical Leave Act (FMLA), employers with over 50 employees must give up to 12 weeks of unpaid leave to said employees. The U.S. Department of Labor's Wage and Hour Division administers this act, which includes a few other requirements that you should know.

Qualifying Circumstances

The FMLA applies to a variety of personal circumstances, including the birth or adoption of a child or a serious illness of an immediate family member. It protects an employee suffering from a serious health condition who is consequently unable to perform normal job duties. The act also applies to military service members' spouses, children, parents, or next of kin if the service member is seriously injured or ill. During an FMLA leave, the employee must follow an employer's normal call-in procedures.

FMLA Leave Qualifications

Employees should notify the employer of a leave 30 days in advance. When the leave is unforeseen, the employee should notify his or her employer as soon as possible to give the employer time to determine if the leave qualifies as FMLA, which the employer should do within five business days of a notice. Military caregivers who receive an invitational travel order (ITO) or invitational travel authorization (ITA) may take immediate FMLA leave for the duration of the ITO or ITA. Aside from that, the timing requirements for all FMLA leave are the same.

An employer must ensure that employees are aware of their right to an FMLA leave and discuss the qualifications of one, as well as the obligations and expectation of FMLA leave, to an employee who has requested leave. To qualify for FMLA leave:

  • FMLA must cover the employer
  • The company must employ at least 50 people within 75 miles of the workplace
  • During the 12 months prior to the leave, the employee must have worked at least 1,250 hours, which does not included paid leave, like vacation days or sick leave
  • Employee must have worked at least 12 months for the employer, though it does not need to be consecutive. Generally, however, only employees who have worked for employers for seven years qualify for FMLA, unless military obligations or a collective agreement broke the service

Leave may be taken intermittently for chunks of time rather than all at once, including less hours a week for medical purposes. However, in the case of adoption or a new born, leave may only be taken intermittently at the employer's digression.

Paid and Unpaid Leave

Under FMLA, employees are not entitled to pay during a leave. It only requires employers to provide unpaid, job-protected time off for specific medical, personal, and family reasons. However, an employee must follow the employer's normal rules for FMLA and, if required, use paid vacation and sick days during his or her leave.

Adoption/Newborn Leave

An employee must return within 12-months of a child birth or adoption. Intermittent leave is left to the employer's digression. However, if the child has a serious medical condition, the employer may allow the employee to take intermittent FMLA beyond the normal 12 month limitation. Fathers and mothers have equal FMLA rights for a newborn, women for medical reasons and men to care for their wife with these new medical conditions.

Chronic Health Condition Leave

An employer may request medical certification every 30 days with a few exceptions. If an employee's original leave was less than 30 days and an extension is requested, the employer can request medical certification before the general 30 days. If the employee's leave is expected to exceed 30 days, the employer may not request a medical certification until the originally allotted time has passed. For every six months the employee is absent, the employer can request a medical certification. After a year, the employer may request a new medical certification, which two or three people may examine to confirm the FMLA's legitimacy.

Employees with a chronic health condition may continue to use FMLA for as long as the condition requires periodic treatments. An employer can require a medical certification to prove the condition but must allow the employee 15 days to obtain it. If, for some reason, the certification provides insufficient information, the employer must list the required information and give the employee seven days to provide it. If a certificate is not provided, FMLA may be delayed or denied. However, employees are not obligated to sign a medical release.

While an employer is entitled to a medical certificate, he or she is not entitled to the employee's medical records. Employers should request certification within five days of an employee's leave request. If the request comes suddenly, the employer should still request medical certification within five days. Employers have the right to contact a health care provider for important, required information on the medical certificate and nothing else; the employer must also comply with the Health Insurance Portability and Accountability Act privacy regulations.

An employer may request a fitness-for-duty certification from an employee before he or she returns to work as long as the employer informs the employee of the required information. If the FMLA leave is intermittent, the employer may request this certificate up to every 30 days. Failure to provide this certification may result in delayed or denied job restoration.

Serious health conditions qualified for FMLA are:

  • Requiring overnight stay in a medical care facility, including hospitals
  • Employee or family of employee is unable to work for three consecutive days due to ongoing medical treatment
  • Pregnancy leave for medical appointments, morning sickness, or required and medically prescribed bed rest
  • A chronic condition for employee or family member that incapacitates someone and requires treatment at least twice a year

Military Personel

FMAL covers regular armed forces with an active duty status and those called to covered active duty status. For those in the Armed Forces Reserve, components are covered for deployment with the Armed Forces under a Federal call to a foreign country or to active duty to support a contingency operation.

Caregiver Leave

Families of service members-including adopted, step, and foster children-of the regular armed forces can take military caregiver leave for up to 26 weeks in a 12 month period. However, a caregiver may only take 26 total weeks of FMLA leave. If he or she has another qualifying FMLA leave, only 26 weeks are allotted for the combined causes. If some of the 26 weeks go unused, they do not carry over into the next year. However, military caregiver leave is "per-service member, per injury", which means a caregiver can take 26 weeks within 12 months for each service member and injury he or she is a caregiver of.

A service member's "next of kin"- the closest blood relative aside from covered spouse, parent, son, or daughter-is as follows: blood relatives granted legal custody by a court or statuary provision, brothers and sisters, grandparents, aunts and uncles, first cousins, and those sharing the closest level of familial relationships. When a service member has multiple siblings, aunts and uncles, etc. each person is considered his or her next of kin.

Returning from Leave

When returning from block or intermittent leave, an employer must return the employee's job or an equivalent position. To qualify, a new but nearly identical position must:

  • Maintain the same general work schedule or shifts at a geographically close worksite (commute time must not be lengthened)
  • Requires same duties, level of skill, responsibilities, status, authority, effort, benefits, and pay
  • Holds the same status

The 2015 Amendment

In February 2015, the Department of Labor's Wage and Hour Division redefined "spouse" under FLMA. This change came after the Supreme Court ruling in United States versus Windsor, which deemed section three of the Defense of Marriage Act unconstitutional. Now, employees eligible for FLMA protection in legal, same-sex marriages enjoy the same rights as employees in heterosexual marriages, regardless of what state the couple lives in.

To learn more about FLMA guidance, fact sheets, forms, and regulations, see the Wage and Hour Division's FMLA page.