Family and Medical Leave Act
When leave is necessary and if you qualify you should utilize the Family Medical Leave Act.
Family and Medical Leave Act of 1993
This law contains provisions on employer coverage; employee eligibility for the law’s benefits; leave entitlement, maintaining health benefits during leave, and job restoration afterleave; notice and certification of the need for FMLA leave; and, protection for employees who request or take FMLA leave. The law also requires employers to keep records. Unlike the ADA, you may file a complaint and get an attorney without a "right to sue" letter.
FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce including joint employers and successors of covered employers.
Am I eligible?
All employees must have worked for the employer for a total of 12 months;
- have worked at least 1,250 hours over the previous 12 months; and
- work at a location in the United States or in any territory or possession of the United States where the employer within 75 miles employs at least 50 employees.
What are my benefits under the FMLA?
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
- for the birth and care of the newborn child of the employee;
- for placement with the employee of a son or daughter 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.
- The Family and Medical Leave Act, unlike the Americans for Disabilities Act, addresses not only permanent illness or injuries but temporary illnesses or injuries suffered not just by employees but also the employee’s family members.
Spouses employed by the same employer are jointly entitled to a combined total of 12 workweeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, and to care for a parent who has a serious health condition.
Leave for birth and care, or placement for adoption or foster care must conclude within 12 months of the birth or placement.
Under some circumstances, employees may take FMLA leave intermittently—which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.
- If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer’s approval.
- FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work.
Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave.
The employer is responsible for designating if an employee’s use of paid leave counts as FMLA leave, based on information from the employee.
What happens to my health benefits?
A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever the insurance was provided before the leave was taken and on the same terms as if the employee had never left work. If necessary, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave. In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave. If the health benefits expire while you are out on FMLA it is the responsibility of the employer to notify you of COBRA benefits and, if applicable, a letter of creditable coverage (see HIPAA).
- Consolidated Omnibus Budget Reconciliation Act (COBRA) was passed by Congress in 1986. This law ensures that employers provide continuation of group health coverage that otherwise would have been terminated upon such time as the employee left or was terminated. This law covers employers with 20 or more employees and applies to private sector, state and local governments. Upon unemployment, the employer must notify you of benefits and then you would have 60 days to choose COBRA or lose all rights to the benefits. The usual length of coverage is 18 months unless there are other circumstances that would cause the employer to extend the benefits to the maximum of 36 months of coverage. Any coverage provided while you are out on FMLA is not to be considered as COBRA coverage. The premium you must pay may vary but cannot exceed 102% of the normal coverage rate for a similarly situated employee.
- The Health Insurance Portability and Accountability Act of 1996 (HIPPA). This law includes important new protections for working Americans and their families who have pre-existing medical conditions or who might suffer discrimination in health coverage. HIPPA also limits exclusions for preexisting conditions, prohibits discrimination against employees and dependents based on their health status and guarantees renew ability and availability of health coverage.
What happens to my job?
Upon return from FMLA leave, an employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
In addition, an employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy. Under limited circumstances where returning to employment will cause substantial and economic injury to its operations, an employer may refuse to reinstate highly paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do this, the employer must:
- notify the employee of his/her status as a "key" employee in response to the employee’s notice of intent to take FMLA leave;
- notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;
- offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and
- make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.
A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.
When do I have to give notice to utilize my benefits?
Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. Employers may also require employees to provide:
- medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member; (a serious health condition is one that requires either the employee to miss three days of work due to illness or injury);
- second or third medical opinions (at the employer’s expense) and periodic recertification; If an employee submits proper documentation from his or her treating health care provider that demonstrates a serious health condition, the employer has the right to have the employee seen for second opinions. However, the health care provider selected by the employer must not work for the employer or have a contract with the employer to provide medical services unless there are two or less health care providers in the vicinity to provide the type of medical services for the health care provider; and
- periodic reports during FMLA leave regarding the employee’s status and intent to return to work.
When intermittent leave is needed to care for an immediate family member or the employee’s own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer’s operation. Covered employers must inform employees of their rights and responsibilities under FMLA, including giving specific written information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave.