Employee Time Off Pursuant to the Family and
Medical Leave Act (FMLA)
The FMLA requires covered employers to provide
employees with job-protected and unpaid leave for qualified medical and family
While mandatory paid sick leave and regular vacation
time are often sufficient to accommodate employees who suffer from a serious
medical condition or must care for a sick or injured family member, there are
instances in which additional time off is required.
It is situations such as those that gave rise to the
Family and Medical Leave Act (FMLA), which became federal law in 1993. Intended
to “balance the demands of the workplace with the needs of families," the FMLA
requires covered employers (see “Eligibility” below) to provide employees with
job-protected and unpaid leave for qualified medical and family reasons. Those
reasons include pregnancy, adoption, foster care placement of a child, personal
or family illness, or family military leave.
FMLA is required to be provided by all federal, state
and local government agencies; all elementary and secondary schools; and any
company with 50 or more employees. Such employers must provide eligible
employees with up to 12 weeks of unpaid leave per year:
• for the birth and care of the employee’s newborn
• for the placement of a child with the employee for
adoption or foster care;
• to care for an immediate family member (spouse, child or parent) who has a
serious health condition;
• for medical leave when the employee is unable to work because of a serious
• to handle a qualifying urgent need or demand arising out of a family member’s
military service; or
• for Military Caregiver Leave (to care for a covered service member with a
serious injury or illness if the employee is the spouse, son, daughter, parent,
or next of kin of the service member). Under certain circumstances, this FMLA
leave can be extended up to 26 weeks during a year.
To be eligible for FMLA leave, employees must have
worked for the employer at a location with at least 50 employees within a
75-mile radius for at least a year. The employee must also have worked at least
1,250 compensable hours over the past 12 months.
The amount of leave allowed by FMLA is generally limited to 12 weeks per year,
regardless of the number of qualifying conditions an employee or their family
members experience during that year. In addition, FMLA leave may be taken
intermittently to allow protection for serious health conditions that may not be
constant and, instead, flare up or require various doctor appointments or
Notice by Employee
In general, the employee must give the employer at least 30 days advance notice
of the need to take FMLA leave, when he or she knows about the need for the
leave in advance and it is possible and practical to do so. For planned medical
treatment, the employee must consult with the employer and try to schedule the
appointment at a time that minimizes the disruption to the employer.
When the need for leave is unexpected, the employee must provide notice to the
employer as soon as possible and practical.
Protection of FMLA
When FMLA leave ends, the employee is usually entitled to be reinstated to the
same or equivalent position. This means the employee should return to the same
pay, benefits and duties as they had prior to taking FMLA leave. Additionally,
employers cannot interfere with, discipline, or retaliate against an employee
who takes FMLA leave. (FMLA enforcement is a function of the Wage & Hours
Division of the U.S. Department of Labor.)
During leave taken pursuant to FMLA, an employee is also entitled to continued
health insurance coverage at the same cost they paid while working. Depending on
the employer’s policies, an employee may be allowed or required to use any
accrued paid leave concurrently with FMLA leave.
Complying with FMLA requirements can be challenging for employers and employees
alike and requires that both parties understand the FMLA’s major provisions and
the employer’s FMLA policy.
For assistance in working through the requirements
of FMLA, you are invited to contact Fitzgibbons Law Offices at 520-426-3824.
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