Labor and Employment

Family and Medical Leave Act for Employers

Managing family and work responsibilities is always difficult, and add in a significant life event - like a new baby or serious illness, and it's nearly impossible to keep up with it all.

The Family and Medical Leave Act (FMLA) was passed in 1992 to help. It allows workers to take up to 12 weeks of unpaid leave from their jobs for family and medical reasons. Employees don't have to worry about losing their jobs or group health benefits while they're out.

Covered Employers

The FMLA covers about two thirds of the employers in the US. Many small businesses aren't included. Employers covered by the law include:

  • Employers who have 50 or more employees (including part-time workers) on the payroll for 20 or more work weeks in the prior or current calendar year
  • Joint employers and those who take over the businesses of covered employers
  • All federal, state, and local government agencies
  • All local educational agencies and private elementary and secondary schools

Eligible Employees

Employees outside of the US aren't covered. Special rules may apply to government employees. Otherwise, an employee of a covered employer is eligible for FMLA leave if:

  • The business has at least 50 employees within 75 miles of the employee's worksite
  • The employee worked for the business at least 12 months
  • The employee worked at least 1,250 hours in the last 12 months

Reasons for Leave

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 mentally or physically unable to care for themselves
  • To care for themselves when they're unable to work due to a serious health condition

Serious Health Condition

An illness or injury is considered a serious health condition for purposes of the FMLA if it involves:

  • inpatient care in a hospital
  • inpatient care in a hospice
  • inpatient care in a residential medical care facility
  • continuing treatment by a health care provider

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

Military Family Leave

A covered employer must also grant unpaid leave to family members of servicemen and women who are injured or called to active duty.

Military Caregiver Leave:

  • An eligible employee may take up to 26 weeks of unpaid leave in a year to care for an injured service member
  • The employee must be the spouse, son, daughter, parent, or closest blood relative of the service member
  • The service member must be a current member of the Armed Forces, including the National Guard or Reserves, or a veteran who served in the Armed Forces within the past 5 years
  • The service member must be undergoing medical treatment, recuperation, therapy or disability leave due to a serious injury or illness incurred in the line of duty

Active Duty Leave:

  • An eligible employee may take up to 12 weeks of unpaid leave to deal with emergencies that arise when a service member is called to active duty
  • The employee must be a spouse, son, daughter, or parent of the service member
  • The service member must be a member of the National Reserves or National Guard, or be a member of the Armed Forces sent to a foreign country
  • A qualifying emergency or exigency includes providing childcare, attending counseling sessions or ceremonies, being with the service member on a short leave, and dealing with legal and financial matters that arise because of the service member's deployment

Job Security

It's illegal for an employer to reprimand the employee or count FMLA leave against an employee in any way. The use of FMLA leave can't be used as a factor in personnel decisions about hiring, promotions, or discipline.

The employer must also maintain group health insurance coverage for an employee on FMLA leave.

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

  • After the 12 weeks of leave, the employee can't do the same work because of a physical or mental condition
  • The employee was laid off and has no continuing employment rights under a union agreement
  • The employee was hired for a specific term or project that ended
  • Putting a key employee back in their job causes substantial economic injury to the business, "key" employees are those among the highest paid 10 percent in the business

Taking Leave

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
  • Determine whether accrued paid leave (such as sick leave or vacation leave) will be used
  • Respond to an employer's occasional checks to verify status and intent to return to work
  • Within two business days of returning to work, an employee may request that his or her leave be recorded as FMLA-related

Providing Information

Employers are required to provide FMLA information to employees by taking the following steps:

  • Post a notice approved by the Secretary of Labor explaining FMLA rights and responsibilities. Employers may use the FMLA Poster
  • Put FMLA information in employee handbooks and Collective Bargaining Agreements, or provide written information when an employee requests leave. Employers may use Fact Sheet No. 28
  • Provide a written notice designating the leave as FMLA leave and detail the specific requirements that apply. Employers may use form WH-381

More information about complying with the FMLA is available from the US Department of Labor's Wage and Hour Division. A Labor and Employment Law attorney will also be able to provide you with more specific information.

Questions for Your Attorney

  • What can I do if I don't believe the employee's reasons for requesting FMLA leave?
  • When can I deny an employee's request to take FMLA leave?
  • Does an employee's time away from work on disability leave count against the 12 weeks allowed for unpaid FMLA leave?
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