FAMILY MEDICAL LEAVE ACT (FMLA)
The Family and Medical Leave Act
FMLA requires employers to grant eligible employees a maximum of 12 work weeks of unpaid, job protected leave during a 12 month period. This applies to all companies engaged in commerce where at least 50 employees are employed at the location, or within 75 miles of the location.
Who is Eligible?
Employees are eligible if they have been employed full or part time for at least 12 months (does not have to be 12 continuous or consecutive months) and have worked at least 1,250 hours during the 12 months prior to the start of the qualified leave.
What does FMLA Cover?
FMLA allows employees to take up to 12 workweeks of unpaid, job protected leave during a designated 12month period in the following cases:
-For incapacity due to pregnancy, prenatal medical care, or childbirth; or care for the employee's child after birth or placement for adoption or foster care.
-To care for the employee's spouse, son or daughter, or parent who has a serious health condition
-For a serious health condition that makes the employee unable to perform his or her job.
Who doesn't FMLA Cover?
-In-laws
-Grandparents
-Aunts & Uncles
-Siblings
-Cousins
-Children over the age of 18 (with exceptions)
-Unmarried domestic partners
What is the definition of a Serious Health Condition?
-A health condition lasting more than three consecutive days, requiring continuing treatment (e.g., hospitalization), plus two visits. This includes: illness, injury, impairment, or physical or mental conditions
-Any period of incapacity due to pregnancy or prenatal care
-Any period of incapacity due to a chronic, serious health condition that continues over an extended period of time and requires visits to a health care provider
-A permanent or long term condition for which treatment may not be effective, requiring supervision by a health care professional (e.g. terminal cancer)
-Any absences to receive multiple treatments for restorative surgery or for a condition resulting in a period of incapacity of more than three days if left untreated, such as chemotherapy or radiation treatments
-For chronic serious health conditions that require intermittent leave, the employee must visit a health-care professional at least twice per year
What is protected?
-The employee is entitled to be restored to the same or equivalent position with equivalent benefits, pay, other terms/conditions of employment
-New position must involve the same or substantially similar duties and responsibilities, skill requirement, responsibility and authority
-Attendance based awards must not consider FMLA based absences
-Company cannot take negative action toward employee, such as hiring, promotions, or disciplinary action
Qualified Exigency Leave
Qualified Exigency leave provides up to 12 workweeks of FMLA due to a spouse, son, daughter or parent being on covered active duty or having been notified of an impending call or order to covered active duty in the armed forces.
-Covered Active Duty for members of regular component of armed forces (army, navy, marines, etc.) duty during deployment to a foreign country
-For members of the reserves - duty during deployment to a foreign country under a call or order to active duty in a contingency operation
-Qualified Exigency Leave Qualifying events:
-Short notice deployment, Military Events,
-Child Care/School Activities
-Financial/Legal Arrangements
-Counseling: rest /recuperation
-Post Deployment Activities
-Additional activities agreed to by employer and employee
Military Caregiver Leave
Military Caregiver Leave provides up to 26 workweeks of unpaid FMLA leave during a single 12 month period for an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member with a serious injury or illness. FMLA Notice
-When the need is foreseeable, FMLA should be requested 30 days in advance notice of need to take FMLA
-If the leave is unforeseeable, notice should be provided as soon as feasible
-If employee was absent for an unknown reason and wants the leave counted toward FMLA, they need to provide timely notice (within 2 business days)
-If employee is absent but doesn't let the employer know why, employer is under no obligation to protect the employee's job
Employer Responsibilities
-To provide written notice designating the leave as FMLA leave and providing specific expectations and obligations of the employee Notice should be provided within one or two business days after receiving notification of employee's request for leave
-To provide employee preliminary designation letter and medical certification form- Employee must be allowed 15 calendar days to obtain medical certification- Failure to do so may result in disciplinary action for unexcused absences- HR/Responsible Party will determine eligibility for FMLA
Retroactive Designation of FMLA
An employer may not designate FMLA retroactively for more than two business days unless:
-The employer doesn't learn of the need for leave until after the leave has begun
-The employer doesn't know the reason for an absence and is notified by employee within two business days after returning to work
-The employer made a preliminary designation of FMLA leave, conditioned upon providing timely medical certification
Intermittent Leave
Intermittent leave may be taken when:
-Medically necessary to care for a seriously ill family member
-An employee has a serious health condition
-May be taken prior to birth
-May be taken to care for a newborn or newly placed adopted or foster care child
Only the amount of leave actually taken may be charged to FMLA
-Cannot require employees to take more FMLA leave than necessary.
-Leave must be tracked in the shortest period of time payroll system allows
-If disruptions occur, employee may be transferred to an alternative job
Two Spouses at the same company?
They may each take 12 workweeks of FMLA for their own serious health condition but spouses employed by the same employer may be limited to a combined total of 12 workweeks for the following reasons:
-Birth and care of a child
-For the placement of a child for adoption or foster care or to care for a newly placed child
-To care for an employee's parent
