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III. Federal Law - Family Medical Leave Act (FMLA)
As noted above, FMLA is intended to give employees the ability to take unpaid leave for certain health-related reasons without the risk of losing their job. FMLA covers entitlement to unpaid leave, maintenance of benefits during leave, and job restoration after leave.
It established a procedure for taking leave and protects employees who request or take FMLA leave from any punishment or detrimental reaction on the part of the employer.
Which Employers and Employees are Covered?
Lots of people know that there is something out there called FMLA. And lots of those people assume that it applies to every employee and every job in America. It’s a federal law, right?
Well, before you rely on FMLA and start planning your 12 week maternity leave, you’ll need to make sure that you and your employer are covered by FMLA.
FMLA applies to any private employer (as opposed to a government employer) which has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.
FMLA also covers all state and local government agencies and offices as well as public and private schools. The government and education employers do not need 50 employees for the law to apply.
To be eligible for FMLA leave, you must:
• be employed by a “covered employer” (one of the employers described above);
• work at a worksite or office within 75 miles of which that employer employs at least 50 people;
• have worked at least 12 months (which do not have to be consecutive) for the employer; and
• have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included. Your individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave.
In determining whether or not you have worked 1,250 hours, it may be helpful to consider whether or not you have:
• 24 hours worked in each of the 52 weeks of the year; or
• over 104 hours worked in each of the 12 months of the year; or
• 40 hours worked per week for more than 31 weeks (over seven months) of the year.
What are the Basic Leave Benefits of FMLA?
First things first. FMLA promises a lot of things but paid leave isn’t one of them. FMLA entitles an eligible employee to up to 12 weeks of job-protected, unpaid leave during any 12-month period without interference or restraint from her employer for the following reasons:
• Birth and care of the employee’s child, or placement for adoption or foster care of a child with the employee;
• Care of an immediate family member (spouse, child, parent) who has a serious health condition; or
• Care of the employee’s own serious health condition.
All three of these reasons are potentially in play before and after the birth of a child, depending on the existence of pregnancy complications, maternal health and newborn health after birth.
The employer may select one of four options for determining how the 12-month period is calculated:
• the calendar year;
• any fixed 12-month “leave year” such as a fiscal year, a year required by State law, or a year starting on the employee’s “anniversary” date;
• the 12-month period measured forward from the date any employee’s first FMLA leave begins; or
• a “rolling” 12-month period measured backward from the date an employee uses FMLA leave.
Leave granted to care for a newborn child or for a newly placed child (adopted or foster) must conclude within 12 months after the birth or placement.
It is important to note also that spouses or partners employed by the same employer may be limited to a combined total of 12 workweeks of family leave for the birth and care of a child or for the placement of a child for adoption or foster care, and to care for the newly placed child. You will definitely want to discuss this in detail with your employer if both parents work for the same covered employer.
What is Considered a “Serious Health Condition” for FMLA?
Obviously, FMLA – when and where it applies – covers a woman who has just had a baby (maternity leave). But FMLA can also help out if that woman has some pregnancy issues and needs to take some leave before her baby arrives. In that case, the issues must qualify as a “serious health condition” under FMLA.
“Serious health condition” as used in FMLA means an illness, injury, impairment, or physical or mental condition that involves:
• any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility; or
• a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by a health care provider; or
• any period of incapacity due to pregnancy, or for prenatal care; or
• any period of incapacity or treatment due to a chronic serious health condition like asthma, diabetes or epilepsy;
or
• a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective such as Alzheimer’s or a stroke; or,
• any absences to receive multiple treatments (including any period of recovery) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (something like chemotherapy, physical therapy or dialysis).
So, any period of doctor-ordered bed rest during pregnancy – either at home or in the hospital - would appear to qualify as a “serious health condition.” Additionally, any period of time that you or your baby is hospitalized after the baby’s birth would meet the requirements of “serious health condition” under FMLA. Finally, any time post-partum that your doctor has ordered you to restrict your activities in order to recover from either vaginal or caesarean section childbirth would qualify.
It established a procedure for taking leave and protects employees who request or take FMLA leave from any punishment or detrimental reaction on the part of the employer.
Which Employers and Employees are Covered?
Lots of people know that there is something out there called FMLA. And lots of those people assume that it applies to every employee and every job in America. It’s a federal law, right?
Well, before you rely on FMLA and start planning your 12 week maternity leave, you’ll need to make sure that you and your employer are covered by FMLA.
FMLA applies to any private employer (as opposed to a government employer) which has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.
FMLA also covers all state and local government agencies and offices as well as public and private schools. The government and education employers do not need 50 employees for the law to apply.
To be eligible for FMLA leave, you must:
• be employed by a “covered employer” (one of the employers described above);
• work at a worksite or office within 75 miles of which that employer employs at least 50 people;
• have worked at least 12 months (which do not have to be consecutive) for the employer; and
• have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included. Your individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave.
In determining whether or not you have worked 1,250 hours, it may be helpful to consider whether or not you have:
• 24 hours worked in each of the 52 weeks of the year; or
• over 104 hours worked in each of the 12 months of the year; or
• 40 hours worked per week for more than 31 weeks (over seven months) of the year.
What are the Basic Leave Benefits of FMLA?
First things first. FMLA promises a lot of things but paid leave isn’t one of them. FMLA entitles an eligible employee to up to 12 weeks of job-protected, unpaid leave during any 12-month period without interference or restraint from her employer for the following reasons:
• Birth and care of the employee’s child, or placement for adoption or foster care of a child with the employee;
• Care of an immediate family member (spouse, child, parent) who has a serious health condition; or
• Care of the employee’s own serious health condition.
All three of these reasons are potentially in play before and after the birth of a child, depending on the existence of pregnancy complications, maternal health and newborn health after birth.
The employer may select one of four options for determining how the 12-month period is calculated:
• the calendar year;
• any fixed 12-month “leave year” such as a fiscal year, a year required by State law, or a year starting on the employee’s “anniversary” date;
• the 12-month period measured forward from the date any employee’s first FMLA leave begins; or
• a “rolling” 12-month period measured backward from the date an employee uses FMLA leave.
Leave granted to care for a newborn child or for a newly placed child (adopted or foster) must conclude within 12 months after the birth or placement.
It is important to note also that spouses or partners employed by the same employer may be limited to a combined total of 12 workweeks of family leave for the birth and care of a child or for the placement of a child for adoption or foster care, and to care for the newly placed child. You will definitely want to discuss this in detail with your employer if both parents work for the same covered employer.
What is Considered a “Serious Health Condition” for FMLA?
Obviously, FMLA – when and where it applies – covers a woman who has just had a baby (maternity leave). But FMLA can also help out if that woman has some pregnancy issues and needs to take some leave before her baby arrives. In that case, the issues must qualify as a “serious health condition” under FMLA.
“Serious health condition” as used in FMLA means an illness, injury, impairment, or physical or mental condition that involves:
• any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility; or
• a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by a health care provider; or
• any period of incapacity due to pregnancy, or for prenatal care; or
• any period of incapacity or treatment due to a chronic serious health condition like asthma, diabetes or epilepsy;
or
• a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective such as Alzheimer’s or a stroke; or,
• any absences to receive multiple treatments (including any period of recovery) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (something like chemotherapy, physical therapy or dialysis).
So, any period of doctor-ordered bed rest during pregnancy – either at home or in the hospital - would appear to qualify as a “serious health condition.” Additionally, any period of time that you or your baby is hospitalized after the baby’s birth would meet the requirements of “serious health condition” under FMLA. Finally, any time post-partum that your doctor has ordered you to restrict your activities in order to recover from either vaginal or caesarean section childbirth would qualify.
Do You Need a Doctor’s Approval for FMLA Leave?
The simple answer is “maybe.” It’s up to your employer. Your employer can require that your health care provider certify or approve the need for FMLA leave due to your serious health condition or that of your immediate family member.
The employer must however give you at least 15 calendar days to obtain and provide the certification.
Your employer may ask you questions to confirm whether your leave qualifies for FMLA purposes. Your employer can also require periodic reports regarding your medical status and your intent to return to work after leave.
Your employer can also have a health care provider representing it contact your health care provider, with your permission, to clarify any information in the medical certification or to confirm that it was in fact completed by the health care provider.
These inquiries are not for the purpose of gathering any additional information regarding your health condition or that of a family member.
In addition to these permitted questions, your employer can even require you to get a second opinion and medical certification. This exam would be at the employer’s expense and the employer can choose the health care provider for the second opinion.
If the two medical opinions are different, the employer can then require you to obtain a third certification. The third opinion, again paid for by the employer, is final and binding. The third health care provider though must be approved jointly by your employer and you.
Your employer can refuse to continue FMLA leave due to your serious health condition if you fail to provide supporting medical certification.
Your employer may not, however, require you to return to work early by offering you a light duty assignment.
Proceed to - Family Medical Leave Act (page 2 of 3)
