What You Need to Know About FMLA

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If you have thought about starting a family but worry that your employer might not give you the paid leave you require, you can rest easy because of the creation of the Family and Medical Leave Act (FMLA) of 1993. The FMLA is a federal law that allows employees of covered employers to take job-protected, unpaid leave from work for a specified period of time.

This law encompasses a somewhat complex set of guidelines and can be a confusing law to understand, but you can find answers to many FMLA questions here.

During an approved FMLA leave, employees are allowed to take time off with full benefits (employee must continue to pay for group benefits) for any of the following cases:

  • Birth of a child and care of a child in the first 12 months of life
  • Adoption or foster care placement of a new child within a 12 month period
  • Care for an immediate family member with a serious health condition (spouse, child, parent)
  • A personal serious health condition that causes employee unable to perform essential job functions, including ongoing chronic conditions and domestic violence that causes injury or illness
  • Care of an active covered member of the military with a serious illness or injury (spouse, child, parent, next of kin

    FMLA time can be taken by both mothers and fathers. Effective March 27, 2015, an approved spouse also includes a legally married same-sex spouse regardless of the state they live in, under the Final Rule. Any children in a same-sex marriage are equal under the law. 

    Employer Eligibility Requirements for FMLA Leave

    Employees who request an FMLA leave must be employed by a covered employer, which is a private sector employer that employs 50 or more employees for at least 20 work weeks in the current or previous year; and all state, local and federal agencies and educational agencies. This includes joint employers and successors of covered employers.

    Payment for Time Off

    While employers can pay their employees for time off, the law does not require any payment. Employers are only required to grant unpaid leave if the employee has met the requirements.

    Employers can, however, require employees to use up remaining sick time, vacation time or any other personal time before using any time provided by the FMLA. This paid leave can be counted as part of the FMLA time period if the employer properly notifies the employee in writing of this decision.

    Amount of Days Off

    To qualify for time off through FMLA, employees must be employed for at least 12 months and have worked a minimum of 1,250 hours. The 12-month period does not have to be consecutive but does need to take place within a seven-year period.

    Breaks in employment due to military service, collective bargaining or other written agreements do not count. Employers also must have a minimum of 50 employees working within 75 miles of that particular employee’s work site.

    Employees can take up to 12 weeks off during an employer-determined 12-month period, according to the FMLA. Employers can determine the 12-month period through one of the following methods:

    • 12-month calendar year
    • Any set amount of time that is 12 consecutive months
    • 12 months from the start of when an employee’s first FMLA starts
    • A rolling 12-month period measured backward from the date an employee uses FMLA leave

    Employees who meet the requirements as a military caregiver may be granted up to 26 work weeks of unpaid leave. 

    Other Requirements

    Employees must give 30 days advance notice of their intentions of going on FMLA. The employer can then accept or reject the employee’s leave. If the employer rejects the FMLA, they must submit it in writing within two days. Once leave is granted to the employee, all decisions are final, and the company cannot retract this leave.

    Employers are also not allowed to inquire the details behind an employee’s decision to go out on leave if the employee does not wish to specify. Employers can only request a physician’s note stating that their employee will be unable to work for that amount of time.

    Employers can also ask about the timeframe that an employee expects to be back at work. Employers have the right to ask for a medical certificate coming from a health care provider and the employee must furnish this within 15 days of requesting the FMLA. Employers can also request a second opinion from a qualified medical practitioner if there is a reason to doubt that the employee has a serious condition that warrants a leave. 

    Employer Requirements and Options

    Before an employee may return from leave, the employer can request that the employee get a medical physical and provide a fitness for duty certification. An occupational medical center can also be utilized for this purpose. 

    During an FMLA leave, an employer may still require employees to communicate via phone and email at times. Employees are expected to respond in a reasonable amount of time and provide periodic updates. However, the employer cannot require employees to perform any of the duties of their jobs.

    While employers must provide job-protected leave during the FMLA period, they do not have to hold the same job open for the employee and may substitute an equal job at the same pay rate and similar duties that the employee can perform upon return to work. This enables employers to continue business while the employee or his or her family member no longer requires care. 

    The Department of Labor - Wage and Hour Division administers and oversees FMLA in all US states. All FMLA guidelines and posters are required to be posted in a public place where all employees can read them.