The Family and Medical Leave Act

FMLA Requirements You Need to Know

Request for a medical leave
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The Family and Medical Leave Act, better known by its initials, FMLA, has been the law since 1993 when President Bill Clinton signed it. This means that for a good portion of the workforce it's always been in effect.

With a law in effect for 22 plus years, you probably think you know how it works. Are you sure? A few things have changed over the years, so read on and see if you are up to date on the FMLA.

On its face, FMLA seems pretty simple. If you're sick or have a sick family member, or have a new child, you can get up to 12 weeks time off, without pay. However, the devil is in the details and sometimes those details change. Here's what you need to know.

Who Is Eligible?

Unlike laws such as the Americans with Disabilities Act, which protects you even when interviewing for a job (as long as the company has at least 15 employees), FMLA doesn't cover you immediately.

Here are the qualifications you need to meet to be covered by this law.

  • Worked for the same company for a minimum of one year. This does not have to be consecutive, however, so you can quit and come back.
  • Worked at least 1250 hours in the 12 months before you begin an FMLA leave. That's a little more than 24 hours a week. If you're a part-time exempt employee, it might be worth it to track your hours yourself to prove eligibility.
    Your schedule may say 20 hours a week, but as an exempt employee, you've likely worked a bit more. Don't let a lack of records keep you from being eligible. Create your own.
  • Work for a company that has at least 50 employees within a 75-mile radius of where you work. They have to have had those 50 employees for at least 20 consecutive weeks. This means people that rely heavily on seasonal labor may not be required to honor FMLA requests if they aren't staffed up almost half the year.
  • Have a qualifying illness or condition (see below) or have a family/household member with a qualifying condition. Who qualifies has changed over the years, so see below for more details.
  • Have a new child. The birth, adoption, or placement of a foster child all trigger FMLA. Mom or Dad is eligible to take the leave. If both parents work for the same company, they can only take a combined total of 12 weeks off for the new child, not 24 weeks.

What Protections Does FMLA Offer?

If you meet the qualifications, you can take up to 12 weeks of unpaid leave. Some companies pay for all or a portion of the leave. If the reason for the leave is your own illness or pregnancy, you may have a disability policy that will pay you at least part of your salary.

The company is required to hold your job for you while you are gone and either reinstates you to your previous position or put you in a similarly situated role. This means your boss can't demote you while you're out, although he can  laterally transfer you.

Your company can, however, still lay you off. If your company eliminates your position, you are not protected because you are on FMLA. It also doesn't protect you from the consequences of  bad performance.

If you take an FMLA approved leave of absence, and while you are gone your boss discovers that you haven't been doing good work, or you've been lying or letting things slide, your boss can terminate you upon your return.

What Qualifies as an FMLA-covered Illness?

Illness is very strictly defined by the Department of Labor as follows:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment, therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery from that place) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

The FMLA covers a wide variety of things, but not every illness.

  • You need to be under a doctor's care for FMLA to apply;
  • You need to ask for FMLA, and
  • You need to fill out the paperwork.

Employees should have 15 days to fill out their paperwork. If you know something in advance (for instance, pregnancy and childbirth claims or scheduled surgeries), you should fill out the paperwork early.

Who Is a Family Member?

The answer to this should be obvious, but it's frequently up for debate in the courts. A spouse (same or opposite gender), a child, and a parent are all family members under FMLA. An in-law is not. So, if your mother has cancer, you can take FMLA time to take care of her. But, if your mother-in-law has cancer, her child must take care of her.

What about stepchildren? The government recognizes that not every child lives with his or her biological parents. The key deciding factor is if the child resides with you and you have the day to day responsibilities for the child.

So, if your step children live with their other parent and see you only every other weekend, you don't qualify for FMLA. But, if the stepchildren mostly live with you, then they qualify. This also applies to grandchildren who live with their grandparent, foster children, and any other relationship where you are considered a primary caregiver for a child.

These guidelines apply to children under 18 living in your home, but what about adult children? To be granted FMLA time to care for an adult child, the child must be incapable of self-care. This need can, of course, be temporary, but must be a serious condition.

Must You Take FMLA All at Once?

No. In fact, you don't even have to take it in full day increments. For a condition, such as cancer, which requires regular doctor's appointments and treatments you can take what is called intermittent FMLA. In this scenario, you can take 12 weeks worth of leave. (12 weeks x 40 hours per week = 480 hours.)

Because FMLA is unpaid, even exempt employees don't have to be paid for intermittent leave. That said, Employment Attorney Jon Hyman strongly recommends continuing to pay exempt employees their full salary when they are on intermittent FMLA.

He says, “Exempt employees do not work set schedules. They are not 9 – 5 jobs. Exempt employees work to get the job done (and, if they are not, you have problems bigger than whether to deduct an hour or two of pay for a doctor’s appointment). Because exempt employees work to get the job done, it is extraordinarily short-sighted (and, frankly, chintzy) to dock their pay for intermittent FMLA leave.

Must an Eligible Employee Take FMLA Leave?

No. If the employee prefers to take a straight leave of absence or vacation time or for some other reason doesn't want the time counted against FMLA, then that is their prerogative. However, the HR department should carefully document that the employee specifically requested that the leave doesn't count against their FMLA bank.

The 9th Circuit court recently ruled that an employee who understands how FMLA works and turns it down isn't protected by FMLA. Tread carefully here, as the other circuit courts haven't ruled on this issue and your circuit court may conclude the opposite.

Generally, an employee has to request FMLA, but HR departments should be sure to offer it to people who they know would be covered. Otherwise, there could be confusion.

Additionally, courts have held that if management or Human Resources tells an employee she is eligible for FMLA and then later concludes that the employee is not eligible, the leave is still protected because the employee believed she was covered under FMLA.

Can You Fire Someone Who Doesn't Come Back to Work at the End of 12 Weeks?

Yes and no. The Americans with Disabilities Act now includes the provision that leaves of absences can be considered a reasonable accommodation, even for periods beyond the 12 weeks promised by FMLA. Always consult with your attorney before terminating an employee whose doctor has not cleared her for work when FMLA expires.