FMLA Leave

FMLA leave is legally required unpaid leave from employment for an employee to care for family issues or personal medical needs. FMLA is an acronym for “Family Medical Leave Act, the federal law that requires this employee benefit. Although the FMLA is invaluable for many employees and families, it is often criticized for not requiring paid leave.

The FMLA was passed into law in 1993. It requires that employers covered by the Act give their employees up to 12 weeks annual, unpaid leave to care for certain serious personal and family medical issues. Such issues include a new birth, terminally ill or critically injured family member, and certain military related family issues. The FMLA also grants up to 26 weeks leave to care for an ill or injured family member whose illness or injury occurred while they were on active duty.

Employees are entitled to the same health benefits during leave that they had while working. Employees who take leave under the FMLA are usually entitled to return to the same or a similar role at their workplace and to the same benefits they had prior to taking leave.

Many states have laws that parallel the FMLA by that may cover more employees and may require additional benefits. The intersection of state and federal laws can be confusing. Employees should take time to learn about the family and medical leave laws that apply to their situation and how to utilize the benefits under those laws before a need arises so that when it does, they are prepared

Employee Pre-Requisites for FMLA

There are preliminary conditions that must be met before an employee is qualified for FMLA leave. In addition to other requirements, to be eligible for leave, you must work for your employer for at least 12 months prior to the leave. During that period, you must have worked at least 1,250 hours which works out to about 25 hours per week. The rules for leave under state laws may be different so even if you are not eligibleunderFMLA, you may be eligible for leave under state law.

To determine whether your employer is covered by FMLA or a state leave act and whether you qualify for leave, start by speaking with your human resource department who is in charge of administering these laws. If you are still uncertain or are told you do not qualify, it may be wise to consult with a third-party employment law attorney that has FMLA experience.

Qualifying Events for FMLA Leave

FMLA leave is only available for certain types of family and medical events. Some common qualifying events for FMLA include military related events,birth of a new child, counseling, recovery time for a serious illness, and care for seriously ill or injured family member.

New Child

New parents of any sex can use FMLA Leave to help them plan and care for a new child.Parents are allowed to begin using their leave before the child arrives, after, or some combination of the two. It is not just biological parents that are entitled to FMLA leave and it is not just available for newborns. Foster or adoptive parents, can use FMLA leave as well. All new parents must use leave within a year of the child’s birth or placement.

Military Related 

There a few different military related uses for FMLA leave. It can be used to care for a family member that was injured during deployment. It can also be used to spend time with a family member before they are deployed. It can also be used to attend certain military events for a family member. Adult children are covered family members for this type of leave.

Ill or Injured Family Member

FMLA leave is available to you in order to care for a seriously ill family member if they are included in coverage. Care for parents, spouses, and children is covered by the FMLA and you can take leave for it. However, unmarried domestic partners, brothers and sisters, grandparents and family members that you have an in-law relationship with are not covered and FMLA leave is not available for their care, no matter how close your relationship with them is. This has been a source of some criticism of the FMLA.

Personal Illness or Injury

FMLA can also be used to care for yourself and provide you time to obtain treatment and to recover following a serious injury or illness. What constitutes a serious illness or injury is discussed by the law. FMLA usually provides coverage if inpatient medical treatment is required, the health issue is considered chronic and serious, or if your medical issue (or recovery from treatment) prevents you from performing normal activities of daily life for three days or more.

Position Reinstatement

FMLA allows up to 12 weeks leave, or 26 weeks in the case of a military caregiver, in a year. FMLA protections would be of little value if the employer could fire an employee while they are on leave or demote them when they return. The FMLA provides some, but not full, protection against such actions by an employer.

When you return from properly taken FMLA leave, your employer must either reinstate you to the same position you held before taking leave or put you in a substantially similar position. An adequately similar position must have the same pay and benefits and similar duties.

However, you could still lose your position while on FMLA leave. FMLA only requires that you are put in the position you would have been if you had worked during your leave. This means that if your employer eliminated your position for legitimate business reasons (not because you took leave), you may not have the right to be reinstated. The reason must be legitimate, though, otherwise you have legal recourse.

You could also lose your position by taking FMLA if you fallinthe category of one of the employer’s highly paid, “key” employees. Employers are not required to reinstate such employeesif:the employee’s pay is in the top 10% of pay for the surrounding 75-mile area and reinstatement would cause substantial financial harm to the company. Even if you are a key employee, your employer cannot blindside you. They must give you notice of this possibility before you take your FMLA leave.

Health Insurance on FMLA Leave

Employees who take FMLA leave are entitled to continue to participate in the employer’s group health insurance plan if they were qualified to participate in it prior to their leave. However, employees exercising this option should be sure they intend to return to work after leave. If you decide not to return to work, your employer could hold you responsible for reimbursing your employer for the portion of the health insurance premiums that they paid on your behalf during your leave. If you cannot return to work because of your serious illness, you will not be required to reimburse these amounts.

Pay for FMLA Leave

FMLA leave is unpaid. However, you may be able to receive pay while on leave by using the paid leave that you have acquired but not used. Whether you can use this paid leave during your FMLA leave depends on your employer’s employment policies and state law. You have to follow both state law and your employer’s leave policies when utilizing paid leave to pay for FMLA time off.

The reason for FMLA leave must align with an allowable reason for using your paid leave. For example, if you have accrued sick leave but under company policies that leave cannot be used for taking care of sick family members then you cannot use that accrued sick leave to get paid during your FMLA leave if that leave is to take care of a sick family member (unless state law requires otherwise). To use paid time off during your FMLA leave you must also comply with all other leave policies that your employer has in place. For example, if you have to give notice before using vacation time, you also have to give that same amount of notice before using that vacation time for FMLA leave. In some cases, this results in a delay of payment until after the notice period.

Even if you would prefer not to use your accrued leave, your employer can force you to utilize your paid time off during your FMLA leave so long as the use aligns with the employer’s policies for using it and state law. So, you may have to use up all your vacation time and return to no vacation days off.

Scheduling Notice Requirements

Even if you are qualified for FMLA leave, you must give your employer proper notice of your intent to take that leave if you want to receive FMLA’s protections. Under the FMLA, you must give your employer 30-days notice of your intent to take FMLA leave if the need is foreseeable. The most common foreseeable need is the birth or adoption of a child. However, certain medical issues of a family member or yourself are also considered foreseeable. Things likeprescheduledsurgery and in certain cases, planned chemotherapy may be considered foreseeable and require 30-days notice.

If the reason for your FMLA need was not foreseeable, you are not completely off the hook for notice. You still must give as much notice as possible – for example, if you can give a week’s notice, you should give that. In the case of a medical emergency, like a bad car accident, you should at a minimum notify your employer as soon as you are able to even though that notice will likely be after leave has begun.

Frequently Asked Questions

  • Am I required to take all of my FMLA leave at once?

No. You may be able to utilize your leave intermittently depending on the reason for use and your employer’s policies. For example, if you will need chemotherapy for cancer treatments that will make you ill and unable to work for a week at a time but able to work in intermittent weeks, you may want to only take leave for those weeks that you are physically unable to work. Your employer has the option of whether to allow you to take intermittent leave for a new child. This is often helpful because it allows spouses to alternate child care duties during the first year and helps employers because the employee has some availability to work.

  • Do I need to provide medical documentation of my illness?

Yes. You usually must provide your employer with a medical certification from a provider setting out the reason you need FMLA leave. Failure to provide required certifications could result in shortened leave.

  • Will taking FMLA leave prevent me from getting my bonus?

No. Assuming you would otherwise be entitled to a bonus, your employer is prohibited from denying you a bonus because you utilized your right to FMLA leave.

  • Will I accrue benefits or leave time while on FMLA leave?

No. Unless your employer has unusually generous policies, your time leave will not count towards accruing time off or other benefits. The unfortunate reality is that after returning from leave, most employees have little to no time off and must start accruing time off from scratch.

  • Will my career suffer if I take FMLA Leave?

It shouldn’t. Your employer is prohibited from retaliating against you for utilizing FMLA leave. Your employer cannot fire, demote, or otherwise punish you for taking leave. You should have the same prospects for advancement as if you had not taken leave.

For those who don’t deal with it every day, the federal Family Medical Leave Act, parallel state leave laws, and the interactions and requirements of each can be confusing. An employment attorney can help you navigate the waters and ensure that you are able to take advantage of leave that you are entitled to. UseUpcounsel’splatform to post your legal need and locate an attorney that can help you.