What Does FMLA Cover?
“What does FMLA Cover?” is a common question that employees have. Many have heard the term and have some idea of what it is but do not know exactly what is covered. The Family Medical Act (FMLA) is a federal law that requires that qualifying employers provide qualifying employees up to 12 weeks of unpaid work leave each year (and in certain military cases up more than that) with job security upon return. The law protects an employee from losing their health insurance benefits while on leave.
Some common situations that qualify for required FMLA leave:
The employee has a medical problem that is serious enough to prevent them from working;
The employee’s immediate family member has an equally serious medical illness or issue requiring the employee to serve as caregiver;
The employee is preparing for or within the first year a birth of a child;
The employee is in the process of receiving and caring for a new foster or adopted child;
The employee needs to provide support to a close family member that has military obligations;
Not all employers are covered by FMLA. All local, federal, and state governmental must comply with FMLA. Private employers must comply with the FMLA only if they maintain 50 or more employees are employed and work for 20 or more weeks during the year.
Not all employees are entitled to FMLA leave. To be eligible, an employee must work for an employer that is covered by the law and must have worked for that employer for at least a year and for a certain number of hours (between full and part-time) during that year.
The FMLA permits employees at qualifying employers to take a total of up to about 3 months of leave in a12 month period to manage specified personal medical or medical or military family problems. There are different ways of calculating the 12-month period that FMLA time off limitations apply to. The employer gets to choose which approved calculation method is used to determine when the 12 month clock starts to run.
There is no complete list of FMLA qualifying events. Instead, the medical or family event is reviewed to see if it falls within a generally permitted categories of leave. Family and medical issues include things like medical emergencies, recovering and treating a serious health issue that impairs the employee’s ability to work, end of life care for an immediate family member, and preparing and caring for a new child. For purposes of possible pay during leave, the law does not provide for it so you must look to your employer’s written manuals on leave to see if your requested leave is an event that may allow pay – or risk getting denied.
Scope of Coverage/ Qualifications
If your company has 50 or more employees that have worked for more than 20 consecutive weeks, your company is covered by FMLA. Keep in mind that independent contractors to not count towards the total number, but part-time employees do. An employee’s 12 months of employment does not need to be consecutive.
Employees have the right to request leave to care for a family member, in need of medical attention. The law defines what family members leave can be taken for. Not all are eligible. For example, FMLA leave cannot be used to care for a sibling. Medical attention does not include common illnesses like cold, flu, upset stomachs, etc. and must be deemed serious by a doctor.
FAQ About FMLA
The following are answers to some of the most frequently asked questions to help you understand your rights and responsibilities under the FMLA.
Q: Can I take FMLA leave for my own health issues? What kinds of health issues qualify?
A: Yes. FMLA can used to care for your health. The health issue must be serious enough to prevent you from fulfilling your job responsibilities. As a general rule, if your condition requires you to see a medical provider at least two times in a month-long period, that condition is serious enough to qualify you for FMLA. You will probably need a note from your healthcare provider supporting your claim.
Q: Can I take FMLA leave to care for my seriously ill adult child?
A: Maybe. The FMLA does not always cover caring for a child. It does cover care required for an adult child that has a serious disability. What qualifies can be a tricky legal issue and it is wise to consult with a legal or FMLA specialist if you need to provide care to an adult child.
Q: I heard that the FMLA provides benefits to military families. Does the FMLA allow me to take lave to help my wife in the Navy manage her affairs?
A: Yes! This is considered a “qualifying exigency,” that is a valid basis for FMLA leave. if you have a family member who is part of the military, including reserves, and need to take time off to help them prepare for deployment or otherwise manage their affairs, you can utilize FMLA leave to take the required time off, within certain annual limits on the total number of weeks that can be used in a year.
A “qualifying exigency is defined by the following broad categories:
School activities and childcare
Legal issue management
Q: What is the process for getting FMLA leave?
A: Yes. The law requires that you request leave from your employer first, providing them a 30-day notice before taking leave if the reason is foreseeable, i.e. preplanned surgery or childbirth. You must also provide your employer enough information to understand the situation you are requesting leave for.
Be sure to request leave under “FMLA” with proper notice to prevent risk ofyour employer denying you leave, delaying the start of leave, or terminating you for taking leave without authorization. While you are technically not required to use the term FMLA as long as it is clear that the leave you are requesting is under the Act, the best practice is still to use the term to avoid confusion about your leave. For example, you don’t want your employer getting confused and thinking that you are simply taking two weeks regular vacation time.
If leave is for a serious health condition, a medical certification supporting your claimed medical issue necessitating FMLA leave is required. Skeptical employers have the option of requesting second opinions from other medical providers. Employers can also require you to update them on your condition while on FMLA leave.
However, your employer also does not become your care manager, their role should be just ensure that you qualify for FMLA leave. Additionally, you have some privacy protections and can take steps to lawfully keep some of your personal medical information from your employer.
Q: What if I do not know that I will need leave 30-days ahead of time? What if I am injured and cannot communicate?
A: The nature of illness and injury is that they are often unexpected. The FMLA takes this into account. In limited circumstances, when it would be impossible or impracticable to comply with the 30-day requirement, a shorter notice period, is permissible. In emergency situations that could not be foreseen, your employer cannot deny you FMLA leave if you gave notice as soon as possible. In most situations, this means giving notice within a day or two of realizing that you cannot go right back to work.
Similarly, even if you return to work once the emergency subsides, if the reason for your emergency was covered by FMLA, you should notify your employer within a day or two of your return that you absence was for FMLA covered reasons.
Q: Can I get information about FMLA leave from my employer?
A: Yes, employers who fall under FMLA’s coverage are required to provide your certain information about FMLA’s claims generally and about your request for leave when you file one.
The general notice about FMAL leave that the employer is required to provide should include basic information about how to request FMLA leave, employee rights under the FMLA, cite to relevant information from the employer’s policies and procedures, and explain how the employer processes FMLA claims.
Employers must also provide a different notice to employees that have requested FMLA leave. The notice must include a notification that your leave is subtracted from your total allowable FMLA leave, explain what the respective rights of you and your employer are, indicate the consequences of you or your employer not complying with your FMLA responsibilities. The notice must be provided within 5 days of the request.
Q: What happens to my job while I am on FMLA leave?
A: One goal of the FMLA is to preserve your job while you are out on leave. Ideally, when you return, you will be placed in the same position with the same pay. If your employer cannot place you in the same exact position, they are required to place you in one that is substantially similar and has the same pay and benefits. Additionally, your absence cannot be counted against you and you cannot be retaliated against for using your leave. Retaliation is unlawful and could give you the right to sue.
In limited circumstances, your employer is not required to re-employ you upon your return and may terminate your employment. This may occur if there was a legitimate change in your employer’s operations, like the lay-off of your entire department, that was not related to your FMLA leave. Or, if you are a key employee under the FMLA – one that is in the top 10% of earners – and rehiring you would cause a serious financial hardship to your employer, your employer may be able to terminate your employment.
Q: Does the FMLA require my employer to pay me during my leave?
A: No, FMLA leave is unpaid. The benefit is job protection upon your return and prohibitions on being punished for being absent from work. However, as discussed below, there may be ways for you to get paid while on leave.
Q: Does my accumulated sick and vacation leave impact how much FMLA leave I have?
A: No, how much FMLA leave you have is determined by the law. If you meet all other requirements, you will have FMLA leave time even if you have no vacation or sick days.
However, there is a relationship between FMLA leave and other leave from your employer. If you have accrued sick, vacation, or other paid leave and your FMLA leave is for a reason covered under those leave policies, you can use that leave to get paid during your FMLA absence from work. Additionally, if you have this leave available, your employer can usually force you to use it to get paid while you are on FMLA leave.
Q: I am a teacher with three months of leave in the summer. Can I take FMLA leave during the winter?
A: Yes, teachers are eligible for FMLA despite their summer leave as long as they meet the other requirements. Due to the nature of teaching, there may be limits on when a teacher can return from FMLA leave to prevent more disruption to the academic setting than required. So, a teacher may actually be required to take longer leave than they want. However, if forced to take additional time, that time does not count towards the teacher’s annual available FMLA leave.
Teachers are not the only ones with unique situations that raise questions about how and if they can use FMLA. It is a complex law that provides valuable rights when taken advantage of but under which employees can accidentally forego rights if they do not use the process properly. If you’d like to discuss FMLA with an experienced attorney, post your legal need on Upcounsel’s attorney connection platform.