How does the Family Medical Leave Act Protect Workers?
By Jacquenette Corgan, Esq.,
©Thompson & Bishop
It’s an all-too-familiar nightmare: A mother gets a telephone call in the middle of the night. It’s from the police. Her daughter has been in a terrible auto accident on her way home from her job. Mother and father instantly get up and rush to the hospital, mobilizing for what will surely be a bleary-eyed, sleepless vigil at the hospital, for however long it takes.
The last thing either parent should have to think about is whether one or both of them could be fired for spending too much time away from work. Until the Clinton administration pushed through the Family & Medical Leave Act (or FMLA) in 1991, that was exactly the question that loomed large in workers’ minds when they needed to take time off work to take care of their loved ones or even their own illnesses.
Since Congress enacted the FMLA, the law requires most employers to give qualifying employees up to 12 weeks of unpaid leave to take care of their own serious or chronic illnesses, and those of their children, spouses and parents. The law also grants the same amount of unpaid leave time for new parents – both mothers and fathers – even if they are adopting a child or providing foster care.
Am I covered?
If you’re a public employee, work for any school (public or private), or work for a company that employs at least 50 people who live within 75 miles of the workplace, your employer must grant FMLA leave to “qualified employees.” To be a “qualified employee,” you must have worked for your employer for at least 12 months, and have worked at least 1,250 hours for the employer during the past 12 months.
When can I take leave?
You can take FMLA leave for any of the following reasons:
$ For the birth and care of a newborn child;
$ For adopting a child or becoming a foster parent;
$ To care for an immediate family member – namely, a spouse, a child or a parent – with a serious health condition; or
$ To take medical leave when you are unable to work because of a serious health condition.
$ Keep in mind that the term “serious health condition” doesn’t mean the common cold. A serious health condition must be an illness that involves either:
$ A period of incapacity (or a series of periods of incapacity) connected with inpatient medical care and subsequent follow-up treatment; or
$ Continuing medical treatment by a health care provider that includes any period of incapacity due to a health condition lasting more than three consecutive days that requires either treatment two or more times by a health care provider or a continuing regimen of treatment; pregnancy; a long-term chronic serious health condition that requires periodic medical supervision; or multiple treatments for restorative surgery or for a condition that, if left untreated, would result in incapacity.
So, you won’t qualify for FMLA leave for the average bellyache. You will qualify for FMLA leave, however, if you need to take your aging parent to doctor’s visits to monitor his or her Alzheimer’s disease, to monitor your own diabetes, to have your new baby vaccinated – or to be with your daughter at the hospital after an automobile accident.
I have plenty of sick days. Why’s the FMLA so good for me?
If you have “banked” more than 12 weeks’ worth of sick days, you’re sitting pretty. If you don’t have that much time, the FMLA is there to protect your job in the best of times, such as in a birth or adoption, and in the worst of times. It also requires employers to maintain your health insurance and other benefits while you’re on leave.
The only exception is for certain highly-paid “key” employees, whose long-term absence from the workplace would substantially harm the employer; key employees are still allowed the leave with continued benefits, but their jobs are not necessarily protected. If you’re a key employee, your employer must inform you of that fact when you request your FMLA leave. Keep in mind that you do not have to take FMLA leave in one big chunk; the law allows you to take what’s called “intermittent leave” in bits and pieces as small as 15 minutes or a half an hour, for such things as doctor’s visits.
Communicate!
Still, you can’t keep your employer in the dark about taking FMLA leave. If you know in advance that you’re going to need leave, such as for surgery you’ve scheduled in advance, or to deliver your baby, you must tell your employer 30 days in advance that you’ll need the leave. If you’re in a situation you could not have foreseen – your spouse suffers a mini-stroke, for example – then you need to inform your employer as soon as you can that you’ll need emergency FMLA leave. There’s also some debate as to whether you have to use the magic words, “FMLA leave,” when you tell your employer you need time off; the best bet is the safest, so if you need FMLA leave, tell your employer, “I need FMLA leave.”
Your employer can and may ask you for proof that you or a loved one is being treated for a serious health condition, or you’re pregnant, adopting or providing foster care. As with any important documents, keep copies all of your FMLA-related medical information together in one place.
This is merely an overview of the FMLA’s provisions. If you want additional information, you can contact an employment attorney, and you can check out the U.S. Department of Labor’s website at http://www.dol.gov/dol/audience/aud-workers.htm.
