Family & Medical Leave

Who is Covered

The FMLA provides a means for employees to balance their work and family responsibilities by taking leave for certain reasons. The Act is intended to promote the stability and economic security of families as well as the nation’s interest in preserving the integrity of families.

The FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.
The law also covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the “50 employee” test. Title II of FMLA covers most federal employees, who are subject to regulations issued by the Office of Personnel Management.

To be eligible for FMLA leave, an individual must meet the following criteria:
• Be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people;
• Have worked at least 12 months (which do not have to be consecutive) for the employer; and
• Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.

An employer need not count employment prior to a break in service of seven years or more unless there was a written agreement between the employer and employee (including a collective bargaining agreement) to rehire the employee, or the break in service was due to fulfillment of military service in the National Guard or Reserves.

Basic Provisions/Requirements

The FMLA entitles eligible employees of covered employers to take job-protected, unpaid (may be paid pursuant to practice or collective bargaining agreement) leave for specified family and medical reasons. Eligible employees are entitled to:

• Twelve workweeks of leave in any 12-month period for:

o Birth and care of the employee’s child, within one year of birth
o Placement with the employee of a child for adoption or foster care, within one year of the placement
o Care of an immediate family member (spouse, child, parent) who has a serious health condition
o For the employee’s own serious health condition that makes the employee unable to perform the essential functions of his or her job
o Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the U.S. National Guard or Reserves in support of a contingency operation

• Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember (Military Caregiver Leave)

If an employee was receiving group health benefits when leave began, an employer must maintain them at the same level and in the same manner during periods of FMLA leave as if the employee had continued to work. An employee may elect (or the employer may require) the substitution of any accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave. Substitution means the accrued paid leave runs concurrently with the FMLA leave period. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy.

Employees may take FMLA leave intermittently or on a reduced leave schedule (that is, in blocks of time less than the full amount of the entitlement) when medically necessary or when the leave is due to a qualifying exigency. Taking intermittent leave for the placement for adoption or foster care of a child is subject to the employer’s approval. Intermittent leave taken for the birth of a child is also subject to the employer’s approval. However, employer approval is not required for intermittent or reduced schedule leave that is medically necessary due to pregnancy, a serious health condition, or the serious illness or injury of a covered servicemember. Employer approval also is not required when intermittent or reduced schedule leave is necessary due to a qualifying exigency.

When the need for leave is foreseeable, an employee must give the employer at least 30 days notice, or as much notice as is practicable. When the leave is not foreseeable, the employee must provide notice as soon as practicable in the particular circumstances. An employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. In requesting leave an employee must provide sufficient information for the employer to reasonably determine whether the FMLA may apply to the leave request. When the employee seeks leave for a qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference the qualifying reason for the leave or the need for FMLA leave.
An employer may require that a serious health condition, or a serious illness or injury of a covered servicemember, be supported by a certification from the employee’s health care provider, the employee’s family member’s health care provider, or an authorized health care provider of the covered servicemember. An employer may also require periodic reports of the employee’s status and intent to return to work during the leave. Additionally, under certain conditions, an employer may require that an employee who takes FMLA leave for his or her own serious health condition submit a certification from the employee’s health care provider that the employee is able to return to work, a “fitness for duty” certification.
An employee who returns from FMLA leave is entitled to be restored to the same or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. The employee may, but is not entitled to, accrue additional benefits during periods of unpaid FMLA leave. However, the employer must return him or her to employment with the same benefits at the same levels as existed when leave began.

Employee Rights

The FMLA provides that eligible employees of covered employers have a right to take job-protected leave for qualifying events without interference or restraint from their employers. An eligible employee has the right to have group health insurance maintained during a period of FMLA leave under the same terms and conditions as if the employee had not taken leave and has the right to be restored to the same or an equivalent position at the end of the FMLA leave.
The FMLA also gives employees the right to enforce their FMLA rights and testify or cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner.

Employees may bring a civil case for violations of the FMLA. Since the losing employer in FMLA cases are required to pay reasonable attorneys fees, Dammeier Law Firm usually takes these cases on a contingency basis with no upfront costs necessary from the client.

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