The FMLA (Family Medical Leave Act) of 1993 allows employees of qualified employers to take unpaid time off of work for a period of time. The Department of Labor oversees the Family Medical Leave Act. Employees who are on an approved FMLA leave are able to take leave from their jobs with full benefits. Employees can take FMLA to leave in the following situations:
- Caring for a family member (child, parent, spouse) who has a serious health condition.
- A childbirth in the family and caring for a child within the first year of life.
- A foster care placement or the adoption of a child.
- A serious health condition that makes it impossible for the employee to perform their essential job functions.
- Caring for an active member of the military that has a significant illness or injury.
The member of the military must be a child, parent, spouse, or next of kin.
Both fathers and mothers can use the Family Medical Leave Act. As of February 23, 2015, same-sex couples that are legally married, regardless of where they live, can also take advantage of the FMLA. Children of same-sex marriage are treated equally under the law.
What Employers are Eligible for FMLA Leave
Employees who request FMLA leave need to work for employers that are covered. Covered employers need to be private sector companies that employ 50 or more employees. Companies need to maintain this number of employees for a minimum of 20 weeks.
This all includes joint employers and successor of employers that were covered.
Time Off Payment
Employers can pay their employees time off, but not obligated to do so legally. Employers only have to allow unpaid leave if employees meet certain requirements. Employers can require employers to use their remaining vacation time, personal time, or any remaining sick leave they have before using any time under the FMLA.
Any type of paid leave of absence may count towards the time you are allowed by the FMLA. However, for paid leave to be counted towards the FMLA time period, employers must notify the employee in writing.
The Amount of Time Off
Employees must have worked a minimum of 1,250 hours to be eligible for the FMLA. You are also required to be employed with the company for at least a year. The 12-year period does not have to be consecutive, but this time frame must occur in a seven-year timeframe. Employment breaks in employment that are the result of military service, collective bargaining agreements, or any other type of written agreement will not count towards the time. Also, employers must have at least 50 employees who work within 75 miles of the worksite.
The most time off an employee can take is 3 months during a 12-month period that an employer determines. Employers can use the following method to determine the 12-month period:
- Any time period that is 12 consecutive months
- A 12-month calendar year
- 12 months from the beginning of when the employee's first FMLA began
- A rolling 12-month period retroactive from the date the employee is on FMLA leave
- Employees who are military caregivers may receive 26 weeks, at the most, of unpaid leave.
Employees have to give 30 days advanced notice that they plan to take FMLA leave. The employer has the right to accept to reject the employee's request for leave. If the request is denied, the employer has two days to submit the rejection in writing. If the leave is granted, the decision is final. The company can't change their position.
Employers cannot ask about the employee's decision unless the employee volunteers this information. Employers are allowed to ask for a note from a physician that explains that the employee will not be able to work for a period of time. Employers can inquire as to how long the employee will be gone. The employer can request a medical certificate from a healthcare provider. Employees have 15 days to respond to this request.
Before employees can return from to their job, the employer may ask the employee to get a physical to prove that they are fit to return to work.
While on FMLA leave, the employee must still be available to communicate with the employer. Employees must respond to any requests from the employer and provide occasional updates. However, employers cannot make employees perform their job duties. It's important to note that employers are not required to keep the same job available for the employee. However, they must provide an equivalent job at the same salary when the employee returns from leave.