THE FAMILY MEDICAL LEAVE ACT (FMLA)

FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.

BENEFITS: Provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave.

APPLIES TO: all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons: Website

  • for the birth and care of the newborn child of an employee;
  • for placement with the employee of a child for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.

Note: FMLA protects those employees who have worked a minimum number of hours during the past 12 months and were employed for a total of 12 months (not necessarily consecutively) for an eligible employer. The time an employee spends on paid or unpaid leave does not accumulate toward the requirement for a minimum number of hours worked. Whether time spent on leave accrues toward the 12 months of employment required for eligibility is an issue not yet resolved.

Also: Disabled employees are equally eligible for FMLA leave.


SERIOUS HEALTH CONDITION: A serious health condition” is defined as any illness, injury, impairment or physical or mental condition that involves:

Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical facility, including any period of incapacity (for purposes of this section, defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom), or any subsequent treatment in connection with such in-patient care; or defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom), or any subsequent treatment in connection with such in-patient care; or

  • A period of incapacity [defined supra] of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
    • Treatment two or more times by a health care provider, ...
    • Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of a health care provider.
  • Any period of incapacity due to pregnancy or prenatal care.
  • Any period of incapacity for a chronic serious health condition.

REINSTATEMENT RIGHTS: An employee absent from work due to a work-related injury qualifying as a “serious health condition,” may be eligible for FMLA leave with job reinstatement benefits.

HOW TO REQUEST: An employee is not required to use “magic words” to request FMLA leave. The employee need only request leave and state a valid medical or family-related reason for the leave. The employer may make informal inquiries to determine the applicability of FMLA leave under the circumstances. The employer will not violate the FMLA if its inquiries are limited to the particular health condition for which the employee requests leave.

HEALTH INSURANCE: Employers are required to maintain health insurance coverage for employees while on FMLA leave. The insurance must be maintained at the level and under condition of coverage that would have been provided if the employee had not taken the leave. Further, taking FMLA leave may not cause an employee to lose any employment benefits which accrued before the date on which leave began.

UNLAWFUL INTERFERENCE: It is unlawful for “any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” under the FMLA. Discriminating against or discharging an individual for exercising their rights or for opposing an employer’s unlawful acts is prohibited.

  • Denying a requested leave is a violation of the Act as is discouraging an employee from taking leave. An employer who manipulates the location of work sites or allocation of employee-hours to avoid responsibility under FMLA, also interferes with employees’ FMLA rights.
  • An employer interferes with employee’s rights if it
    • counts FMLA leave under a no-fault attendance policy;
    • relies upon a health care provider, “employed on a regular basis by the employer,” to verify an employee’s medical need for leave;
    • fails to “give notice of a requirement for medical certification each time a certification is required” by the employer.

 

 


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