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April 12th, 2017
The Family and Medical Leave Act (“FMLA”) entitles eligible employees of covered employers to take unpaid, job protected leave for specified family and medical reasons. FMLA, a federal law, provides for the continuation of group health insurance coverage during the leave period. Eligible employees are entitled to 12 workweeks of leave in a 12-month period for the following events:
- The birth of a child and to care for the newborn child within 12 months of birth;
- The adoption of a child or foster parenting of a child;
- To bond with a child (leave must be taken within one year of the child’s birth or placement);
- To care for the employee’s spouse, child, or parent who has a serious health condition;
- For the employee’s own serious health condition that makes an employee unable to work;
- Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is a covered military member on “covered active duty;” OR
- Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent or next of kin.
FMLA leave is not required to be taken in one block, all at once. When it is medically necessary or otherwise permitted, employees may take leave intermittently or on a reduced schedule basis. Employees may choose, or an employer may require, use of accrued paid leave while taking FMLA leave. If an employee substitutes accrued paid leave for FMLA leave, the employee must comply with the employer’s normal paid leave policies. Upon return from leave, most employees must be restored to the same job or one that is nearly identical to it with equivalent pay, benefits, and other employment terms and conditions.
FMLA also prohibits discrimination or retaliation against an employee for using or trying to use FMLA leave. Specifically, FMLA makes it unlawful to “interfere” with, “restrain” or “deny” the exercise of an any attempt to exercise, rights that are provided by FMLA. In addition, employers may not use the fat that an employee has taken FMLA leave as a negative factor in hiring decisions or promotion determinations.
Not every employer is required to comply with FMLA. FMLA applies to those employers who employed 50 or more employees for at least 20 workweeks during either this year or the previous year. FMLA also applies to all public agencies (state and local governments) and to all schools, whether public or private. Public agencies and schools do not need to meet the requirement of employing at least 50 people. FMLA also covers most federal employees, and is covered by regulations issued by the Office of Personnel Management.
Not every employee is eligible for FMLA leave. Eligibility for FMLA leave is reserved for employees who have worked for an employer for at least 12 months, and they must have worked at least 1,250 hours during the 12 months immediately preceding the date FMLA leave to begin. Generally, employees must give 30 days’ notice in advance of the need for FMLA leave; however, if it is not possible to give 30 days’ notice, an employee must notify the employer as soon as possible. Although employees are not required to share a medical diagnosis, they must provide enough information to the employer so it can determine if the leave qualifies for FMLA protection.
In addition to FMLA leave, most states have a similar statutory version of family leave or medical leave that provides protections and benefits for employees.
