Family and Medical Leave Act

Under federal law, the broad-reaching Family and Medical Leave Act ("FMLA") may require an employer to allow eligible employees to take up to 12 weeks of unpaid leave for certain family and medical reasons, without having to worry about losing their jobs. But FMLA doesn't apply to small employers having 50 or fewer employees. There are also a number of additional exceptions that may lessen the burden of the act on employers who may otherwise be covered.

FMLA Basics

For an employee to be eligible:

• The business must have at least 50 employees (either part-time or full-time) who live within 75 miles of the company (or the employee must work for either the federal, state or local government).
• The employee must have worked for your business for at least 12 months and at least 1,250 hours.

The act allows employees to take time off:

• To care for a newborn child.
• To care for a new adopted or foster child.
• To care for a seriously ill son, daughter, parent or spouse. (A child over the age of 18 isn't covered, unless the adult child is considered "incapable of self-care because of a mental or physical disability" as defined by the Americans with Disabilities Act.)
• To care for themselves (when an employee suffers from a "serious health condition" that prevents job performance).

What exactly is a "serious health condition" under the FMLA?

The Department of Labor's short and hazy definition is - "an illness, injury, impairment, or physical or mental condition that involves "inpatient care" or continuing treatment by a health care provider." Basically, cancer, diabetes, surgery, pregnancy difficulties and so forth qualify.

If an employee is eligible for sick leave under the act, the employer may (but isn't required to) offer that employee a lighter schedule or some other accommodation so that the employee can keep working.

Job Security Under the FMLA

It's illegal for an employer to reprimand the employee or count FMLA leave against an employee in any way - including attendance.

An employee must be offered the same job or an equivalent position when he or she returns, unless:

• After the allotted 12 weeks, the employee can't return to the job or perform the same work because of a physical or mental condition.
• If FMLA leave will cause "substantial and grievous economic injury" to the business, "key" employees (those who are among the highest paid 10 percent in the business) don't have to be reinstated in their jobs.

Taking Leave Under the FMLA

In order for an eligible employee to take leave under FMLA, he or she should:

• Give the employer 30 days written notice before starting the leave. (However, in certain circumstances an employee can take leave immediately or within one to two working days.)
• Provide medical proof. This may require more than just a doctor's note The employer can request second and third medical opinions, but the employer must pay for those.
• Make arrangements with regard to continuing group health benefits during the leave.
• Address issues on whether to use accrued paid leave (such as sick leave or vacation leave) as part of the FMLA leave. Under the law, an employer can require an employee to use accrued leave.
• Respond to an employer's occasional checks to verify status and intent to return to work. (A failure by an employee to provide medical certification when the employer requests it may be grounds for termination of employment.)
• Within two business days of returning to work, an employee may request that his or her leave be recorded as FMLA-related.

Employer Obligations Under FMLA

FMLA imposes a number of obligations on employers. These include the requirement that employers "post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA." An employer must also provide information to all employees about requirements for such leave, as well as the repercussions for employees who fail to return to work after the leave.

If you have additional questions, you may contact the U.S. Department of Labor's Employment Standards Administration's Wage and Hour Division, which is in charge of enforcing the law.

State Law Requirements

While FMLA may serve as a good guideline as to what is required of employer in this area, there may also be state laws that come into play. To find out what state-specific requirements may be in the area of employee leave, you should check the laws of each state where the business has employees.

Sherrie Bennett is the former director and staff attorney at the University of Washington Student Legal Services in Seattle.

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