The federal Family and Medical Leave Act (FMLA) offers up to 12 weeks of leave within a 12-month period to employees who need to take time off for family or medical reasons. Although the leave is unpaid, by law your employer must allow you to return to your job once your leave is over or to an "equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment." The Act was created to provide job security for workers who need to take time off to care for themselves or for their families.

Qualifying Events for FMLA

Events that qualify for FMLA include the birth of a child; the adoption of a child or placement of a foster child into the employee’s family; the need to care for one’s own serious health condition; or the need to care for a family member’s serious health condition (child, spouse or parent). The leave does not have to be taken all at one time, but can be used in increments by the employee over the 12 months. An employer may require medical certification from a health care provider to verify the health condition of an employee or of their family member.

FMLA defines “serious health condition” as an illness, injury, impairment or condition requiring either inpatient care in a hospice, hospital, or residential center or continuing and ongoing treatment by health care professionals. Basically, such chronic conditions as cancer, heart attacks, strokes, severe injuries, certain surgeries, and Alzheimer's disease qualify.

When You Can Take Leave under FMLA

Employees must take FMLA within one year of a child’s birth, placement or adoption. The child must be either a minor (under the age of 18) or an adult dependent who is unable to care for him or herself due to mental or physical challenges. The same one-year rule applies to an employee taking FMLA leave to take care of children or other close relatives suffering from serious health conditions.

Employers and Eligible Employees

All government agencies are bound by FMLA regardless of their size or number of workers. Eligible workers need not be U.S. citizens, but must have:

• worked more than a year with the employer;
• worked at least 1,250 hours during that one-year period; and
• either have worked in a location that employs at least 50 employees, or worked at a place within at least a 75-mile radius of where 50 or more workers are employed by the same employer.

While employers are not required to pay workers who opt to take FMLA leave, they must continue to provide health coverage. However, if an employee chooses not to return at the end of the leave period, then the employer may seek to recover the cost of premiums paid during the time off. But if an employee is unable to return to the position because of ongoing injury or illness, they are not required to pay back health care premiums paid during their leave.

Limitations under the FMLA

Some states recognize civil unions or domestic partnerships between same-sex individuals and different-sex couples. Furthermore, two states—California and Massachusetts —have recognized same-sex marriage. However, FMLA does not apply to same-sex partners or couples in domestic partnerships, defining “family” strictly as a spouse, child or parent. In addition, spouses who work for the same employer and wish to take FMLA to care for a newborn, newly adopted or foster child, or for a sick parent, may not take more than 12 weeks of combined  FMLA leave, although they may take their leave at the same time.

An employer is not obliged to keep accruing seniority to an employee who is on FMLA absence. Furthermore, an employer can require an employee to use sick or vacation time before granting family and medical leave.

FMLA Notice Requirements

Federal law requires employers to post notice of FMLA rights in a conspicuous place in the workplace. Also, information about FMLA must be featured in employee manuals and/or training materials. An employer should grant approval or denial of FMLA leave in writing and must inform employees of their obligations to provide medical documentation of their leaves beforehand. Compliance assistance materials for employers are available at the Department of Labor’s website.

In turn, employees must tell their employer they are seeking FMLA leave as soon as possible after a qualifying event or before a qualifying event if advance notice is available (such as with a birth or adoption). Although, 30 days notice is requested, workers will not be punished for illnesses with a sudden onset. In addition, employees are obligated to provide medical documentation of their health conditions, and update employers on their situations or the situations of their family members if they are requested to do so.

Returning to Work

Once an employee’s FMLA leave has expired, the employee must be restored to either the same position within the company or a comparable one with the same skill level requirements, responsibilities, and pay. The only exceptions are for positions that a company eliminates because of locations closing or staff layoffs. Also, the salaried and highest-paid employees at a company (i.e., the top 10 percent of earners) may be denied reinstatement if doing so would cause serious economic harm to the employer; an employer, however, must provide sufficient notice to the employee if they decide that this is the case.

Additional Leave for Employees with Family in the Military

In January 2008, the President signed into law an amendment to the FMLA that allows an employee to take up to 26 weeks of leave in a 12-month period to care for a “member of the Armed Forces,” who may be their “spouse, son, daughter or parent, or next of kin.” The family member must be undergoing “medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

Furthermore, the amendment allows for up to 12 weeks leave because of a ‘qualifying exigency” arising out of the fact that an employee’s spouse, child, or parent is called to active duty or is on active duty. Department of Labor (DOL) regulations have stated that the DOL will confirm the meaning of “qualifying exigency” in upcoming regulations at which point this requirement will take effect.

Resources

If you are denied FMLA leave or reinstatement to your position, or feel you have been discriminated against or harassed for requesting FMLA benefits, you should contact the Wage and Hour Division of the U.S. Department of Labor's Employment Standards Administration at 1-866-4-USWAGE, or hire a private employment attorney who will be able to inform you of your rights.