Family and Medical Leave Act (FMLA)

What is The Family and Medical Leave Act?

Better known as the FMLA, The Family Medical Leave Act was enacted by Congress in 1993 for the purpose of providing eligible employees with no less than 12 weeks of job-protected leave per year for qualifying serious health conditions. Although the purpose is basic, the law itself can often be complex. Here are some common questions clients and potential clients tend to have about the FMLA.

Who is an eligible employee?

An eligible employee is an employee who has been employed by their employer for at least 12 months, has worked at least 1,250 hours during the 12-month period immediately preceding the commencement of the leave, and is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

What health conditions may qualify for FMLA leave?

(1) The birth of a son or daughter, including time off to care for the newborn child;

(2) Placement of a child via adoption or foster care;

(3) Caring for a spouse, son, daughter, or parent with a serious health condition;

(4) A serious health condition that makes the employee unable to perform the functions of their job;

(5) A qualifying exigency arising out of a spouse, son, daughter, or parent who is a military member on covered active duty or has been notified of an impending call or order to covered active duty status; and

(6) Caring for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. Employees who fall under this category of leave may be entitled to 26 weeks of FMLA leave per year.

What conditions qualify as serious health conditions?

A serious health condition is an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

Inpatient care requires an overnight stay in a hospital, hospice, or residential medical care facility and any subsequent treatment in connection with the inpatient care is also considered to be part of the serious health condition.

Continuing treatment by a health care provider includes:

(1) A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition. In order for the FMLA to apply, the employee must either be treated in person by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider (i.e. prescription medication, rehabilitation, etc.) or receive in person treatment two or more times within 30 days of the first day of incapacity by a health care provider;

(2) Any period of incapacity due to pregnancy or for prenatal care;

(3) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition which requires periodic visits for treatment by a health care provider or by a nurse under direct supervision of a health care provider, continues over an extended period of time, and causes episodic periods of incapacity (e.g., asthma, diabetes, epilepsy, etc.);

(4) A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (i.e. Alzheimer’s, stroke, or the terminal stages of a disease such as cancer); and

(5) Any period of absence to receive multiple treatments and/or to recover therefrom by a health care provider or by a health care provider.

Does an employee have to use all 12 weeks of FMLA leave at once?

No. FMLA leave can be taken in a variety of ways depending upon the nature of the serious health condition. Although some employees’ serious health conditions may require them to utilize their entire 12 week allotment as part on a single continuous FMLA leave, FMLA leave can be taken in shorter intermittent increments including weeks, days, hours, or even minutes. FMLA leave can be taken at any point during the workday, including during a shift, at the start or end of a shift, or via a reduced schedule leave.

Can an employee be terminated while utilizing FMLA leave?

Yes. The FMLA does not provide absolute job protection for employees. Rather, it protects employees from termination or other adverse actions such as a demotion or other forms of employee discipline as a result of the employee exercising their rights under the FMLA. Employees utilizing FMLA leave can, however, still be disciplined by their employer for actions unrelated to the FMLA leave and for failing to follow company policies with respect to the FMLA.

Does an employer have to pay an employee who is on FMLA leave?

No. The FMLA does not require employers to pay employees who are on leave. However, employers can allow or even require employees to utilize other available leaves (i.e. short or long term disability, paid time off, sick pay, and/or paid vacation) at the same time as the FMLA leave and those other types of leave may allow an employee to be paid while on FMLA leave.

Can an employee receive more than 12 weeks of FMLA leave per year?

Yes and no. An employer may elect to allow employees to miss more than 12 weeks of work per year without punishment. However, the FMLA only protects employees during the first 12 weeks of leave per year. Once those 12 weeks of leave have been utilized, the FMLA no longer protects an employee in most circumstances.

How are the 12 weeks of FMLA leave per year calculated?

An employer can elect to utilize either a calendar year or a rolling calendar year for purposes of FMLA leave. A calendar year is January 1 – December 31 so employers utilizing that method are required to provide eligible employees with 12 weeks of FMLA leave between January 1 and December 31 of each year. A rolling calendar year is the 12 months prior to the date(s) of the FMLA leave so the employers utilizing that method are required to provide employees with 12 weeks of FMLA leave within the 12 months preceding the date(s) of the FMLA leave.

What can employees do to protect their jobs when utilizing the FMLA?

Communication is key when it comes to the FMLA. Employees should review their employer’s FMLA policies and communicate with their employer so they understand what the employer requires with respect to the FMLA. Employees should also communicate with their or their family member’s health care provider to ensure they understand what leave, if any, the health care provider is authorizing and to make sure the employer is made aware of this information. If the employer is requiring a certification from the health care provider, the employee should make sure the certification is completed accurately and returned to the employer in a timely method.

If you encounter problems with your FMLA leave or believe your employer may not be following the law, contact me at (317) 616-3671 for a free consultation.