FMLA: What is it and Who Needs It

Not all that long ago, If you had a serious illness or injury, or if you needed to care for someone in your family, you would have had to make a choice. You could choose between taking care of family member or your health, or you could keep your job.

Until the early 1990’s an employer could terminate an employee for medically related circumstances if they needed an extended absence from work. There was no safety net for you to take time off for the treatment of a serious medical condition. There was no guarantee that you would have a job to return to after the birth or adoption of a child. You could find yourself unemployed if you needed to care for a parent after a stroke or a heart attack. It might not have been an ethical decision for employers to make, but it was certainly legal.

Legislation was passed in January of 1993 to protect employees from this detrimental practice. Today, you could be one of the millions of Americans who are able to take time off of work and still have your job when you are able to return.

The History of the Family and Medical Leave Act

As the first noted accomplishment of his new administration, President Bill Clinton signed the Family and Medical Leave Act. With FMLA American workers no longer have to choose between their families and their jobs.

It was not an easy battle. It took nine years for the legislation to become law. The original draft was written by the Women’s Legal Defence Fund. It was introduced to Congress yearly from 1984 to 1993. Congress did pass the legislation in 1991 and 1992 with bipartisan support, but it was vetoed by President George H.W. Bush both years.

The Employer Qualifications Depend on the Number of Employees

Not everyone will automatically qualify for employment protection. To be eligible, you need to work for a covered employer.

  • Any business that has at least 50 employees is required to comply. That company must have 50 employees for at least 20 weeks during the current and previous year.
  • All public agencies run by state, federal or local governments are required to provide the Family and Medical Leave even if they have fewer than 50 employees.
  • All schools, private and public must also comply, regardless of the number of employees.

The Employee Qualifications Depend on the Length of Time Employed

Working for a qualified employer does not guarantee that you have the right to a Family and Medical Leave. Not all employees are eligible. They must meet several criteria.

  • You must have been employed by the company for a minimum of 12 months.
  • The 12 months do not need to be consecutive; seasonal workers would also qualify if the time with the company totals 12 months.
  • The 12 months do not need to be consecutive; seasonal workers would also qualify if the time with the company totals 12 months.

The Leave is to Care for Yourself or Your Immediate Family

The Family and Medical Leave Act covers time away from work to provide care for yourself or a family member if they need assistance with medication, hygiene, their nutritional needs or for their safety. The leave also protects you when you have a family member who is unable to get to medical appointments on their own. You are only eligible to care for members of your immediate family.

  • Includes you or your spouse in the event of injury or illness.
  • Time needed after your baby is born or your adoption of a child, or if a child is placed in your home for foster care.
  • To care for your son or daughter under 18 with a serious health condition, or over 18 if they are not able to take care of themselves because of a disability.
  • Your parent. The term “parent” is not limited to your biological or adoptive parent. This term applies to a person who provided your care when you were a child. You are not eligible for a parent-in-law. That would be the responsibility of your spouse.
  • Any circumstances created because your spouse, son, daughter or parent is on active duty, or is called to active duty.

You are also eligible for time off to provide psychological comfort and reassurance, to a spouse, son daughter or parent who is in inpatient care in a medical facility or requires home care.

You May Qualify for 12 weeks Away from Your Job

You may qualify for a 12-week absence out of a 12 month period. You can take the 12 weeks consecutively, or you can take an intermittent leave and use the allotted hours to work part-time, a shorter work week, or leave work early when necessary for appointments or treatments. This is something that you would be able to arrange with your employer. Your employer will still be obligated to provide group health insurance to you, although you may be required to make your insurance payments.

  • Your employer is obligated to restore you to your previous job when possible, but if the position is no longer available, you will be given an equivalent job with equivalent pay and benefits. Your time away from work cannot be held against you.
  • You do not need to be the only person available to provide care to qualify for the Family and Medical Leave Act.

You would be eligible for 26 work weeks away from your job in 12 months if you are caring for a service member, if they are your spouse, son, daughter, parent or you are service members next of kin.

Your Time on Medical and Family Leave is Not Paid

The time you take away from work is not paid, but your employer can require that you use any paid vacation time as part of your 12-week absence. If your employer requires that you use any paid time off, they must provide you with proper notification. Your employer cannot force your return to work before the end of your leave unless you fail to provide adequate documentation.

Requesting Covered Time Off From Your Employer

You and your employer have rules to follow when it comes to FMLA. You are required to give notice of the requested leave as soon as possible. With an elective surgery or childbirth, plans for your absence can be made in advance.

There may be times when advance notice is not possible. If the leave is being requested unexpectedly, you are advised to let your employer know as soon as you are able.

  • Your employer must let you know if your leave request was approved or not within five business days. Your employer cannot deny your requested leave as long as you comply with the certification process.
  • If the employer claims you are not eligible, he must offer an explanation, such as you were not employed with the company long enough. When you are approved, your employer must provide documentation of your rights and your responsibilities.
  • Your employer can request updates while you are away from the job.
  • You will still need to use the regular call-in procedures if you are taking an intermittent leave.

Your employer may need certification from a health care provider to support the requested leave. The employer may also request a second or third opinion at their own expense. Recertification can be applied for after the 12 month period has ended.

Employers Must Provide Family and Medical Leave Information

Your employer required to post a notice outlining the basic information of the Family and Medical Leave Act. If your employer does not post Family and Medical Leave Act information, they could be fined $100 for each offence when they get caught.

Employers cannot stop a qualified employee from taking the Family and Medical Leave, and they are not allowed to interfere with the process.

Some states provide their own family or medical leave protection. If you live in one of these states, you would be eligible to take whichever plan would give you the most benefit.

The Women’s Legal Defense Fund is still working to expand family leave coverage and also working to include a national paid leave program in the future. There is more work to be done.

Thanks to the battle won in 1993; you may qualify for the Family and Medical Leave Act. When you are eligible for employment protection, you can use the 12 weeks consecutively or intermittently as a way to balance your job and your family responsibilities.

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