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Family Medical Leave Act
The Family and Medical Leave Act (FMLA) is a federal law that provides unpaid, job-protected leave to eligible employees, both male and female, in order to care for their families or themselves for specified family and medical conditions.
FMLA provides eligible employees with up to 12 work-weeks of unpaid leave in a 12 month period for the birth, adoption, or foster care placement of a child; care of a spouse, son, daughter, or parent with a serious health condition; or their own serious health condition which causes an inability to work. If you qualify and have unused FMLA leave time, your employer cannot deny you FMLA leave.
FMLA covers private sector employers with 50 or more employees. Part-time employees are counted toward the 50 employee minimum. Public employers are covered regardless of the number of workers they employee.
To be eligible, an employee must have worked for the employer at least 12 months and at least 1,250 hours within a 12-month period before the leave begins. The employer must employ at least 50 workers at or within 75 miles of the work site.
A “serious health condition” under FMLA includes, illness, injury impairment, or a physical or mental condition that involves: in-patient care, defined as an overnight stay in a medical facility, and any related incapacity, and continuing treatment by a health care provider which includes at least one of the following:
- More than 3 consecutive days of incapacity and any subsequent treatment or period of incapacity related to the same condition that also involves 2 or more treatments (including examinations) by a healthcare provider; or one treatment which results in a regimen of continuing treatment using prescription medicine or special equipment under the provider’s supervision;
- Any period of incapacity due to pregnancy even if the treatment is not received during the absence of prenatal care;
- Any period of incapacity or treatment for a chronic serious health condition requiring periodic treatment even if treatment is not received during the absence;
- A long-term or permanent period of incapacity; or
- Any period of absence for multiple treatments and recovery from the treatments by a health care provider for restorative surgery or for a condition that would likely result in more than a 3 day period of incapacity if left untreated.
If an employee or family member’s illness occurs over a weekend, holiday, or vacations, the “more than 3-consecutive -day period of incapacity” may require only a day or two FMLA leave from work.
An employer may require a medical certification that gives medical facts that confirm the type of serious health condition. If the certification is for the employee’s own serious health condition, it may require information on the employee’s inability to perform essential job functions. An employer may require additional medical opinions at the employer’s expense.
An employee has a minimum of 15 calendar days following the employer’s written request to submit a medical certification.
An employee with a serious health condition qualifies for FMLA leave when he/she is unable to perform any one of his/her essential job functions or must be absent in order to receive medical treatment for that condition.
An employee qualifies for FMLA leave for family purposes when he/she is needed to care for a family member with a serious health condition. Covered care includes, physical or psychological care, to provide basic medical, hygienic or nutritional needs or comfort and reassurance to alleviate a psychological condition during in-patient or home care.
An employee must notify the employer of the need to take a leave for a reason that qualifies under the FMLA. Although the employee does not have to mention the FMLA or assert his/her rights under the law when requesting leave, the employee must provide sufficient information to indicate the leave is for an FMLA qualifying purpose. The notice can be verbal or written.
An employee must give 30 days notice prior to taking leave when the need is foreseeable. If the need for leave is unforeseeable, notice must be given as soon as practical, which means within one or two working days of becoming aware of the need for leave. The notice must include information indicating the leave is covered under FMLA and specify the timing and duration of the leave. If additional leave is needed, the employee must notify the employer that the continuing leave is for an FMLA qualifying reason. Another adult may give notice of the need for FMLA leave on the employee’s behalf when he/she is unable to do so personally.
The employer is required to determine whether the leave qualifies under FMLA leave or ask the employee for more details in order to make a determination. If the employee qualifies, the employer must tell the employee that the leave will be counted as FMLA leave and how much FMLA leave will be recorded. The employer is then required to notify the employee of the requirements for maintaining benefits and protection during leave and his/her rights upon returning from leave.
If an employee takes leave for an FMLA qualifying reason but the employer did not designate the absence as FMLA leave, the employee must notify the employer within 2 business days of returning to work that the leave was covered under FMLA. Otherwise, the leave will not get FMLA protection.
FMLA leave can be taken all at once (12 workweeks); one week and/or a day at a time; on an intermittent basis in small blocks of time for a single qualifying condition; or on a reduced schedule of usual hours. Intermittent and reduced schedule leave can be used for the birth, adoption, or foster care placement of a child only if the employer agrees to it.
Benefits such as group health insurance coverage must be maintained during FMLA leave under the same terms and conditions as if the employee was working. Co-payments normally paid by the employee when working can be required. A worker has a right to all benefits as provided during other forms of paid or unpaid leave and to benefit changes
FMLA allows the substitution of certain types of paid leave for unpaid FMLA leave if an employee wants it or the employer requires a substitution. An employer must apply terms of a collective bargaining agreement or bargain with the Union before changing the terms.
No. Absences while on FMLA leave cannot be counted as absences under employer attendance policies. Employees cannot be penalized under a no-fault or any other type of attendance policy.
An employee must be returned to the same job or an equivalent job held before leave began with the same pay, benefits, and other terms and conditions of employment. All benefits such as group health coverage must be maintained upon return to work as if the employee had not taken leave. On return from leave, vacation based on hours of work can be affected.
FMLA protects an employee’s right to use leave and return to work afterwards. It also prohibits an employer from discouraging, preventing, or retaliating against an employee seeking or using FMLA leave, and prohibits an employer from discriminating against or discharging an employee for FMLA leave related matters. Employees can file charges for violation of the FMLA with the US Department of Labor’s Wage and Hour Division.
The FMLA grants employees rights that are independent of other laws and Union contracts. If other federal and state laws or a Union contract provide greater benefits than the FMLA, the employer is obligated to provide the greater benefits and explain any different requirements.