Business Law

Family and Medical Leave Act for Employees

The Family and Medical Leave Act (FMLA) is a federal law that allows employees to take up to 12 weeks of unpaid leave in a 12-month period for medical reasons, to care for a family member with a serious health condition, without having to worry about losing their jobs or for certain events connected to a covered family member's active military duty.

Eligible employees, whether they are a spouse, son, daughter, parent or next of kin, may also take up to 26 weeks of unpaid leave in a single 12-month period to care for a covered service member recovering from a serious illness or injury.

Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave.

Unfortunately, the exceptions are broader than the benefits the Act provides. Chances are that the Act may not apply to the small business you work for, and in that case, you won't get paid while you're out unless you use your paid vacation time.

The Basics

The Act doesn't cover small business employees, but it does cover about two-thirds of American workers.

For an employee to be eligible:

  • You must work for a business made up of at least 50 employees (either part-time or full-time) who live within 75 miles, or you must be a federal, state or local government employee
  • You must have worked for at least 12 months and at least 1,250 hours for your current employer

The Act allows you to take time off to care for:

  • A newborn child
  • A new adopted or foster child
  • 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 the Americans with Disabilities Act (ADA))
  • Yourself, but only if you suffer from a "serious health condition" that prevents you from performing your job
  • A covered member of the armed services who's recovering from a serious illness or injury

What's a "Serious Health Condition?"

The US 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 you're eligible for taking sick leave under the Act, your employer may (but isn't required to) offer you a lighter schedule or some other accommodation to keep you working.

Military Personnel

A member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status or is otherwise on the temporary disability retired list, for a serious injury or illness is covered by FMLA.

Also, beginning in January, 2009, FMLA benefits for service members and their families will be increased because of amendments that were made to the FMLA by the National Defense Authorization Act of 2008 (NDAA). The amendments provide for a new:

Qualifying Reason for Leave, which gives workers up to 12 weeks of leave because of "any qualifying exigency" connected to the fact that the employee's spouse, son, daughter or parent is on active duty, or has been notified of an immediate call to active duty. Qualifying exigency includes:

  • When the service member gets a notice of deployment within 7 or fewer days of the actual deployment
  • Urgent child-care and school activities
  • Visiting with the service member when she's on "rest and recuperation" leaves during her deployment

Leave Entitlement, which gives a worker who is the spouse, son, daughter, parent or next of kin of a covered service member who is recovering from a serious illness or injury sustained in the line of duty, up to 26 weeks of leave in a single 12-month period to care for the service member.

Unpaid Leave

Although FMLA leave is generally unpaid, your employer must maintain any group health benefits provided to you during the leave period.

Job Security

It's illegal for your employer to reprimand or count the leave against you in any way, including attendance. Also, your employer must provide you with the same job or an equivalent position when you return, unless:

  • After the allotted 12 weeks, you can't return to your 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% in the business) don't have to be reinstated in their jobs

What to Do When You're Taking Leave

If you're eligible for FMLA leave and want to use it, you should:

  • Give your employer 30 days written notice before starting the leave. In certain circumstances, you can take leave immediately, or within one to two working days.
  • Provide medical proof. Just one doctor's note may not work. The employer can request second and third medical opinions, but the employer must pay for those.
  • Make sure your employer is continuing to pay your group health benefits during your leave. You, of course, must continue to pay any premiums.
  • Decide whether to use accrued paid leave (such as sick leave or vacation leave) as part of your FMLA leave. Under the law, your employer can require you to take any unused leave that you've accumulated.
  • Respond to your employer's occasional checks to verify your status and intent to return to work. If you fail to provide medical certification when your employer requests it, your employer can terminate the leave or your employment.
  • Within two business days of returning to work, request that your employer record your leave time as FMLA-related, so your job absence doesn't come back to haunt you.

Getting Help

By law, employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. Your 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. For example, if you don't return to work when your FMLA leave ends, you can be fired immediately, or you might have to repay the costs that your employer paid to keep your healthcare coverage in force during your leave.

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

What's Next?

If you still feel that your employee rights have been violated, write down everything that has happened, including the date, time, place and names of those involved, and consider contacting a employment law lawyer with FMLA experience.

The law prohibits employers from discriminating against or discharging an employee exercising rights under the FMLA, and authorizes an employee to bring an administrative or civil lawsuit in federal court to enforce the FMLA. Remedies available include injunctive relief, such as reinstatement to your job or promotion, or the recovery of money damages such as back pay, as well as attorney's fees.

State Medical Leave Laws

In addition to the federal FMLA, many states have their own family medical leave laws. Covered employers must comply with the federal or state provision that provides the greater benefit to their employees. The US Department of Labor does not enforce state family and medical leave laws, and states may not enforce FMLA. There are links to federal and state comparison charts on the US Department of Labor, Wage and Hour Division Web site.

Questions for Your Attorney

  • I was deployed to Iraq, and when I returned, I found out that my employer gave someone else my job and transferred me to a different store, which is much farther away from the store I was working at before deployment. Can she do that?
  • I can take FMLA to care for my step-children, right? What about my grandchildren?
  • I think my employer is wrongfully denying me FMLA leave, but I'm afraid that if I complain, he'll fire me. What should I do?
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