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Family Medical Leave Act ( FMLA )

6. What is the “Family Medical Leave Act”?

The Family Medical Leave Act (FMLA) was passed to provide covered employees (both male and female) with time away from work in the event of medical necessity. Specifically, covered employees can take up to 12 weeks of unpaid leave from work during any 12-month period in any of the following situations:

•   Health Conditions – The covered employee is unable to work due to a serious health condition;

•   Family Members – An immediate family member of the employee has a serious health condition that requires the employee’s care;

⁃    Note: An immediate family member of a covered employee includes a spouse, minor child, or individual over whom the employee has legal guardianship (such incapacitated individuals).

•   Birth – Upon the birth of a newborn child of the employee;

•   Adoption/Guardianship – Upon acquiring physical guardianship of child pursuant to adoption or foster care; or

•  Military Injury – A family member is injured pursuant as part of military activity or medical necessity arises pursuant to notice of a family member’s pending deployment.

The employer cannot take any negative actions against the employee for taking the unpaid leave and must allow the employee to return to her same job at the end of the period. The employee does not have to take the entire time off. Further, the period is independent of any paid time off or vacation time accrued and taken by the employee.

Covered Employees and Employers

When determining whether the FMLA applies to an employer or covers a particular employee, there are two separate tests. First, the FMLA applies to employers employing:

•   50 + Employees – The employer must employ 50 or more part or part-time or full-time employees,

•   Daily Employees – The 50 or more employees only includes those who work each working day (whatever days of the week that may be),

•   20 + Weeks of Employment – The 50 + employees must work for 20 or more weeks during the current or preceding calendar year.

If any of the above elements are missing, the FMLA does not apply to the employer. Second, the FMLA provides benefits to employees who meet the following conditions:

•    12-Month Period – The employee must have worked for the employer for at least 12 months;

⁃    Note: The 12-month period does not have to be consecutive. That is an employee can work for a time, stop, and then restart. The question is whether the employee has worked for a total period of 12-months.

•   1250 + Hours – The employee must have worked at least 1250 hours during the proceeding 12 months; and

⁃    Note: Look back 12 months and see if the employee has a combined 1250 hours.

•    50 + Employees – The employee must work at a location where at least 50 employees work.

⁃    Note: This requirement excludes employees in satellite offices for larger companies.

If all of these elements are present, an employee of a covered employer is eligible for FMLA benefits. The onus is on employers to notify eligible employees of their eligibility for such leave and to document any request for leave by the employee. The employer may require a medical certification that a qualifying event has occurred prior to granting the leave.

•    Discussion: How do you feel about each of the requirements for an employer to be regulated by the FMLA? How do you feel about the requirements for an employee to be covered? Why do you think the law allows for these employer and employee exemptions? Do you agree with these limitations? Why or why not?

•    Practice Question: Sandra works for ABC Corp. She recently learned that she is pregnant. She knows that she will want to take some time away from work after having her baby to build the mother-child bond. She has 5 weeks of paid leave and 1 week of sick leave available. What do we need to know to determine how much time Sandra could possibly take off from work?

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