Labor and Employment

Employment Leave under the Family Medical Leave Act

If you have an elderly family member who is seriously ill, you may be entitled to take a leave of absence from your job under the Family and Medical Leave Act (FMLA). The FMLA is designed to allow employees to balance their work and family obligations by taking reasonable unpaid leave for certain family and medical reasons.

Employer Coverage

The FMLA applies to all covered employers consisting of:

  • Federal, state and local employers, including public school districts
  • Private employers who employ 50 or more workers for at least 20 workweeks in the current or preceding calendar year

Employee Eligibility

To be eligible for FMLA leave, an employee must work for a covered employer and:

  • Must have worked for that employer for at least 12 months
  • Must have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave
  • Must work at a location where at least 50 workers are employed within 75 miles of that location

Leave Entitlement

A covered employer must allow an eligible employee to take 12 work weeks of unpaid leave in a 12 month period for one or more of the following reasons:

  • To care for a newborn child
  • To care for a child who was newly adopted or placed for foster care
  • To care for an immediate family member who has a serious health condition
  • When the employee is unable to work because of a serious health condition

An eligible employee may be entitled to 26 work weeks of unpaid leave to care for a member of the Armed Forces, National Guard or Reserves who is receiving treatment, recuperating, or receiving therapy for a serious injury or illness.

An immediate family member includes a parent but does not include the parent "in-law" of the employee requesting the leave. Further, spouses employed by the same employer may be limited to a combined total of 12 work weeks of family leave for the following reasons:

  • Birth and care of a child
  • Placement of a child for adoption or foster care or to care for a newly adopted or placed child
  • Care for an employee's parent who has a serious health condition

Usually, employees are required to give at least 30 days written notice prior to taking FMLA leave and may be required to furnish medical proof. Also, employees may choose to use or employers may require that employees use accrued paid vacation leave to cover all or part of the FMLA leave.

What Is a Serious Health Condition?

Serious health condition means an illness, injury, impairment, physical or mental condition that involves:

  • Incapacity or treatment connected with inpatient (overnight) care in a hospital, hospice or residential care facility
  • Incapacity involving continuing or multiple treatments and requiring an absence of more than three calendar days from work
  • Incapacity due to pregnancy or for prenatal care
  • Incapacity due to chronic serious health conditions such as asthma, diabetes or epilepsy
  • Permanent or long term incapacity due a potentially untreatable condition such as Alzheimer's, stroke or cancer

Effect on Continued Employment and Benefits

An employer must restore the employee to the same or similar position held before the start of the FMLA and must receive the same pay and benefits earned prior to taking FMLA leave.

An employee on FMLA leave is entitled to continued group health insurance benefits, and an employee on unpaid FMLA leave must make arrangements to pay the employee portion of the insurance premiums. Any other entitlement to benefits provided by the employer must be negotiated.

Questions for Your Attorney

  • What qualifies as a serious medical condition, and how do take leave under the FMLA?
  • Can my employer make me use up my vacation time before I take leave under the FMLA?
  • I took leave under the FMLA, and my employer wants to assign me to different duties now that I'm ready to come back to work. Is this change allowed under the law?
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