This article is a Q&A on the Family and Medical Leave Act. While space does not permit explaining all of the details of the Act, the column explains general answers to some common questions.
What is the Family and Medical Leave Act?
The Family and Medical Leave Act (FMLA) is a federal law, enacted in 1993. Its purpose is to allow employees reasonable unpaid leave to care for a new child or for a serious health condition affecting the employee or a family member, while accommodating employers’ reasonable needs.
Who is covered by the FMLA?
It applies to employers with 50 or more employees, so many smaller businesses are not covered.
Which employees are eligible?
To be eligible, the employee must have worked for the employer for at least 12 months (but not necessarily 12 consecutive months), AND the employee must have worked at least 1,250 hours during the year prior to the start of the leave (which is more than half-time but less than full-time).
What type of leave is allowed?
An employee can have up to 12 weeks of unpaid leave during a year. An employer can require that an employee take all of their paid leave (vacation or sick time) first, as a part of the 12 weeks, and then provide the remainder of the 12 weeks as unpaid leave. This means that an employee cannot tack vacation or sick leave onto the twelve-week unpaid FMLA leave. An employee can take leave intermittently or by having a reduced work schedule, in many scenarios, e.g., intermittent for chemotherapy or reduced schedule when returning to work gradually after an injury.
What events qualify for FMLA leave?
Any of the following: (1) birth of a child, (2) adoption or foster care placement of a child, (3) caring for a spouse, son, daughter, or parent with a serious health condition, or (4) the employee’s own serious health condition that makes the employee unable to perform their job functions. There are rules defining a “serious health condition.” Examples of conditions that are usually “serious health conditions” are cancer, stroke, asthma, diabetes, incapacity due to pregnancy, and injuries or illnesses requiring inpatient care. Common routine conditions like colds, flu, injuries requiring only emergency room care, and minor ulcers would not qualify.
What happens to an employee’s health insurance while on leave?
The employer must maintain the same health insurance benefits as if the employee were not on leave. The employee must continue to pay their usual share of the premium, and the employer must continue to pay its usual share, if any.
Is the employee’s job protected?
Except in unusual circumstances, like key executives or serious hardship for the employer, the employee has the right to return to the same or equivalent position. Upon return, the employee must receive equivalent pay, benefits, and working conditions they had at the start of the leave. Employees do not usually accrue seniority while on leave.
What kind of notice and documentation can the employer require?
If possible, the employee must give the employer 30 days’ advance notice of a request for leave. If advance notice is not possible (e.g., injury, sudden illness), the employee should notify the employer as soon as possible. The employer can require a certification from the doctor about the need for the leave. To return from leave, if the leave is due to the employee’s own incapacity, the employer can require the doctor to certify (as to that condition only) that the employee can return to their duties.
These are the general rules on basic FMLA requirements. There are many exceptions and details that may make a difference on how FMLA applies in any given case. If you have questions about the particulars of FMLA, contact an attorney or call the Department of Labor.
Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough, NC. She can be reached at 919-732-7300 or firstname.lastname@example.org.
This article was last updated in January 2020.