FMLA – Family and Medical Leave Act

FMLA – Family and Medical Leave Act

OVERVIEW

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

  • Twelve workweeks of leave in a 12-month period for:
    • the birth of a child and to care for the newborn child within one year of birth;
    • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
    • to care for the employee’s spouse, child, or parent who has a serious health condition;
    • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
    • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
  • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

THE BASICS, Q&A

1. When can I take family or medical leave under the FMLA?
If you are covered by the FMLA (see Question 3), you may take leave under the following circumstances:

  • If you have a serious health condition;
  • If you are caring for your new baby, or caring for a newly adopted or newly placed foster child;
  • If you are caring for your child, spouse or parent with a serious health condition;
  • If you are caring for a wounded service member or veteran; or
  • If you need time away from your job to address particular circumstances arising from the deployment of a service member or a member of the armed forces.

The FMLA allows you to take time off (“leave”) without losing your job, your seniority or your employer-provided health insurance.

Note: You must work for an employer that is covered by the FMLA and meet certain eligibility requirements to qualify for FMLA leave.

2. Who counts as “family” when I need to take FMLA leave?

  • Under the FMLA, “family members” for the purposes of family leave are:
  • Your children — when they are born, adopted, placed with you as a foster child, or when they have a “serious health condition;”
  • Your parents — when they have a “serious health condition;”
  • Your spouse — when she or he has a “serious health condition;”and
  • Your next of kin – for wounded service member leave only.

The FMLA’s definition of “child” under 18 is broad. It includes a biological, adopted or foster child; a stepchild; or a legal ward. It also includes a child for whom you have responsibility for day-to-day care or financial responsibility, even if you have no biological or legal relationship with that child. For example, your grandchild, sibling or the child of your domestic partner may qualify as your child for purposes of taking leave under the FMLA, as long as you act as his or her parent. In addition, you can take leave to care for an individual who acted as a parent, or “in loco parentis,”for you when you were a child.

The definition of “child” includes a person older than 18 who is incapable of self-care due to a mental or physical disability. The U.S. Department of Labor clarified the terms “disability” and “incapable of self-care” to expand access to FMLA leave for care of a child 18 or you may take “wounded service member leave” as the parent, child, spouse or “next of kin” (nearest blood relative) of a service member in the armed forces, including the National Guard or Reserves. You may take “qualifying exigency leave” if you have a parent, child or spouse on active duty or who is called to active duty status in the armed forces, including the National Guard or Reserves.

Some states have state-based family and/or medical leave programs that cover more family members for more purposes.

3. How do I know if I can take family or medical leave under the FMLA?
You qualify for unpaid, job-protected leave under the FMLA if you meet three criteria:

  • Your employer has 50 or more employees on the payroll for 20 workweeks during the current or preceding calendar year. (To determine whether your employer is covered, find out how many employees are on the payroll, including those who are on leave or working part time.) All 50 employees need not be on site at your worksite, but your employer must have at least 50 employees across all of its worksites within a 75-mile radius.
  • You have worked for your employer for at least 12 months and for at least 1,250 hours during the last year. (If you have worked 25 or more hours for 50 weeks in a year, you have worked the required total of 1,250 hours. However, certain rules do apply to teachers, highly paid employees and airline flight crew members — see Questions 50-53.)
  • You are taking time away from your job to address your own “serious health condition,” the “serious health condition” of a covered family member, to care for a new child, to care for a wounded servicemember in your family or to address particular circumstances arising from a covered family member’s deployment or call to active duty in the armed forces.

4. How are LGBT individuals and families covered under the family leave provision of the FMLA?
The FMLA provides family leave to care for a spouse.

Now that same-sex marriage is legal in all 50 states, same-sex married couples have the right to take FMLA leave to care for each other. A parent in a same-sex relationship who has no biological or legal connection to his or her child can take leave to care for that child if he or she assumes the day-to-day responsibilities of caring for or financially supporting the child. An adult child can take leave to care for his or her parent or a person who stood in a parental relationship when he or she was under 18, even if she or he does not have a biological or legal connection.

5. How much leave can I take under the FMLA?
And what if I need more time? The FMLA allows you to take either family leave, medical leave or qualifying exigency leave, or any combination of the three, for up to a total of 12 weeks per year. This means that if you are on family or medical leave or on qualifying exigency leave and away from your job for a total of up to 12 weeks in a year, your job is protected. There is one circumstance that provides a longer period of leave: Military family members are entitled to 26 weeks of wounded service member leave in a year. If your employer gives male employees longer leave for serious health conditions, female employees may be entitled to more than 12 weeks of leave for pregnancy- or childbirth-related health conditions under the Pregnancy Discrimination Act. You may also have additional protections through state law or your employment contract.

6. Will I get paid while I’m on FMLA leave?
The FMLA does not require your employer to pay you during leave. You may be entitled to use any paid annual, vacation or sick time that your employer provides. Your employer’s policies determine whether you may— or must — use that leave in conjunction with your FMLA leave. Some states have state-based paid family and/or medical leave programs and other laws that require your employer to allow you, if you choose, to use accrued paid sick, vacation or other time off during a period of FMLA leave.

In addition, workers with serious health conditions relating to pregnancy must be treated the same as other employees with serious health conditions. For example, under the Pregnancy Discrimination Act, if male employees get paid while they are on leave because of serious health conditions like heart attacks, female employees on leave due to pregnancy or childbirth-related conditions must get paid too. Under most short-term disability policies, women are entitled to six weeks of paid disability leave for vaginal deliveries and eight weeks for Cesarean sections.

7. What is the definition of “a year” or “12-month period” under the FMLA? 
The FMLA permits employers to determine how to measure an employee’s annual entitlement to FMLA leave. They are permitted to use a calendar year (January 1 through December 31); any fixed 12-month period of the employer’s choosing (e.g., the employer’s fiscal year, an employee’s anniversary date, etc); or two different methods of measuring 12 months based on the employee’s personal leave record or requests.

8. What information about the FMLA is my employer required to give me?
All employers with 50 or more employees are required to post a notice about the FMLA where employees can see it. Copies of the notice are available from the U.S. Department of Labor’s Wage and Hour Division. If your employer fails to post the notice, you cannot be penalized if you do not give your employer advance notice that you will need leave. Also, the U.S. Department of Labor can fine your employer if its failure to post the notice was intentional. In addition, when you request family or medical leave under the FMLA, your employer is required to give you information about the medical certification and other requirements that will apply to your specific leave.

The Department of Labor has robust resources on FMLA: General Guidance, Fact Sheets, Posters, Forms, and Interpretive Guidance.

 

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