What You Need to Know About the Family and Medical Leave Act of 1993 (FMLA) and Were Afraid to Ask

Part 1

The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid leave in a 12-month period. The leave can be taken for the birth, adoption, or foster placement of a child, the care of a family member with a serious health condition, or the employee’s own health condition.

The FMLA does not limit greater benefits to employees provided under state law, collective bargaining agreements, or the employer’s benefits policy. So, if your employer offers paid leave that you qualify for under the company’s benefits policy, you are entitled to that.

• Who is covered by the FMLA?
  • The FMLA applies to private employers with 50 or more employees on each working day for at least 20 weeks during the current or previous year.
  • The FMLA also applies to the Federal government, its agencies, the USPS, the states, and their agencies, including schools and political subdivisions (like counties and cities).

• What are the requirements of the employee to qualify for coverage?
  • The employee must have 12 months of service at the time that the leave begins. The employee’s service does not need to have been consecutive or continuous.
  • The employee must have worked at least 1,250 hours within the last 12 months prior to the beginning of the leave.
  • The employee must have worked at a site where there are 50 or more employees of the same employer within 75 miles. (For employees who work in sales or occupations that require travel to different worksites, the worksite for FMLA purposes is the location where the work is assigned or the reporting location).
• What can the employer ask for to approve FMLA leave?
  • The employer may ask for a certification from a medical provider indicating that the employee or the employee’s family member has a “serious health condition” and the likely duration.
  • The employer must give the employee at least 15 days to provide the certification. If the certification is not provided in a timely manner, the employer may deny the leave or delay it until it is provided.
  • The employer can require a second opinion but must pay all costs. If the second opinion differs from the first opinion, the employer can ask for a third opinion by a health provider jointly chosen by the employer and employee. The employer must pay all costs, and the third opinion will be binding.

• What qualifies as a “serious health condition”?
  • The U.S. Department of Labor has defined a “serious health condition” as any illness, injury, or physical or mental condition that involves:
    • inpatient care in a medical facility or subsequent treatment in connection with inpatient care; or
    • continuing treatment by a health care provider, including:
      • incapacity requiring more than 3 days of absence from work, school, or other daily activities;
      • incapacity or treatment due to a chronic serious health condition;
      • any period of incapacity due to pregnancy or pre-natal care;
      • any period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective; or
      • any period of absence to receive multiple treatments either for reconstructive surgery following an accident or injury, or which would result in at least 3 consecutive days of absence without such medical intervention.

• What if I need to take leave from work intermittently to receive periodic treatment for an illness?
  • The FMLA provides an option to take intermittent leave in blocks of time that can be taken in periods from as brief as one hour to several weeks.
  • This option also allows an employee to reduce the number of working hours per day or week.

• What is required for intermittent or reduced time leave?
  • The employee must have a medical need that can be accommodated by intermittent or reduced time leave. As with full-time leave, a medical certification may be required by the employer.
  • The employee must try to formulate a work schedule that does not disrupt the employer’s operations.
  • In some instances, the employer can assign an employee to another position with the same pay and benefits that would better accommodate the employee’s schedule. HOWEVER, this transfer must comply with any applicable laws, such as the Americans with Disabilities Act (ADA), state laws, and collective bargaining agreements, if any. You should contact an attorney if you have any concerns.
• How does FMLA work if I am entitled to paid leave?
  • As stated above, FMLA provides qualifying employees with unpaid leave. If an employee has accrued paid leave available, the employee may choose to take that, or the employer may require that the accrued paid leave be taken in lieu of unpaid FMLA leave. Note that if the employer requires that the employee take paid leave, that decision must be made at the time that the employee gives notice of the leave or before the leave begins.
  • If the employee used paid leave for reasons not covered by the FMLA, the employee remains entitled to the full 12 weeks of unpaid FMLA leave.
  • If neither the employee nor the employer chooses to substitute paid leave for unpaid FMLA leave, the employee remains entitled to all paid leave accrued.

As always, if you have any concerns about FMLA leave or are having difficulties obtaining FMLA leave or problems with your employer for having taken FMLA leave, you should seek legal assistance. FMLA leave is protected by Federal law.

Contact Us for Legal Assistance

When it comes to looking for legal help with any type of illegal employment discrimination, Weiler Law PLLC is here to help. Our team of attorneys understands the complexities involved in these cases and is dedicated to providing the best possible representation. We can work closely with you throughout the process to ensure that your rights are protected.