When employees request time off because of a health condition or to care for a family member’s health problem, you need to know whether that leave could qualify under the Family and Medical Leave Act (FMLA).
The 1993 law allows qualified employees to take up to 12 weeks of unpaid leave each year for the birth or adoption of a child, to care for their own “serious” health condition or to care for an immediate family member who has a “serious” condition.
Employees don’t specifically need to cite the law or say they need “FMLA leave.” It’s your responsibility as the employer to identify leave requests that could qualify as job-protected FMLA leave. If you suspect a leave request could qualify, you should notify HR right away.
Here are more specifics on the law:
Which employees are eligible?
To be eligible for unpaid leave, employees must have worked here for at least 12 months and logged at least 1,250 hours of service (slightly more than 24 hours per week).
How much leave is allowed?
Eligible employees can take up to 12 weeks of unpaid, job-protected leave during a 12-month period. The law refers to unpaid leave; it doesn’t require paid leave during those 12 weeks.
Eligible leave doesn’t have to come in one-week or even one-day chunks. The law allows some employees to take “intermittent” FMLA leave, which can be for one hour or less.
FMLA does permit employees to elect (or employers to require the employee) to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period.
What’s an ‘illegal’ manager action?
You can’t prohibit eligible employees from taking FMLA leave. Nor are you allowed to consider FMLA leave as a negative factor in any employment action, such as hiring, firing, promotion or discipline. You also can’t punish employees for complaining about a violation of the law.
After FMLA leave is over, employees must be able to return to the same or an equivalent position with equal pay, benefits and perks. The new position must involve the same or substantially similar duties, responsibilities and authority as the pre-leave position.
Employees on FMLA leave continue to earn health benefits.
What reasons qualify for leave?
Qualified employees are allowed to take FMLA leave for any of these reasons:
Child care. To care for the employee’s child after birth, adoption or foster care. (Both women and men can take FMLA leave for birth and adoption.)
Family illness. To care for the employee’s spouse, child or parent (not extended family) who has a “serious” health condition.
Own illness. For the employee’s own “serious” condition that makes him or her unable to perform the job.
What is considered a ‘serious’ health condition?
The question of which ailments qualify as “serious” conditions is a tricky one. Basically, the law defines a “serious condition” as one that requires in-patient hospital care or causes a three-day incapacity with continuing treatment by a health care provider.
That can include heart attacks, most cancers, back conditions that require extensive therapy, strokes, spinal injuries, certain respiratory conditions, severe arthritis and injuries resulting from accidents. Pregnancy, morning sickness, prenatal care, childbirth and recovery from childbirth also qualify.
But that list isn’t complete. Courts are constantly debating which ailments qualify as “serious” and which don’t.
Employers have the right to demand medical certification from a doctor to make a decision on whether a condition qualifies.
Advice: Bring the issue to HR’s attention whenever you suspect an ailment might qualify for FMLA protections.
Can you deny FMLA leave to certain employees?
FMLA does establish a class of workers known as “key” employees to whom employers can deny reinstatement from FMLA leave if doing so would cause the business “substantial and grievous economic injury.” You can’t deny FMLA leave to a key employee, only reinstatement. “Key” employees are salaried employees whose earnings are in your organization’s top 10 percent.
Also, if you can prove that you would have terminated the employee if he or she had been at work (say, if the company closed a department where the employee worked), you can also terminate the employee while he or she is on FMLA leave.
Must employees notify you?
Eligible employees who want to take FMLA leave must give you 30 days’ advance notice when the need is foreseeable, such as when a pregnant employee anticipates time off for childbirth.
When FMLA leave is not foreseeable, they need to inform you as soon as practicable, which usually means one or two business days.
Remember, employees don’t need to mention FMLA as long as they provide enough information to decide that the leave qualifies. In short, the burden is on employers to recognize that leave may qualify.
