What is the Family and Medical Leave Act (FMLA)?
The Family and Medical Leave Act allows eligible employees to take up to 12 weeks of unpaid leave a year. The Act further goes on to mandate that their group medical benefits remain in place for the entire 12 weeks. It also allows individuals to return to work at the same or an equivalent position at the end of their leave.
When an employer is given a request for FMLA leave, or the employer gets knowledge that a request for leave may be FMLA related, then the employer is required to inform the employee making the request of their eligibility as well as their rights and responsibilities under the FMLA.
The Wage and Hour Division within the U.S. Department of Labor is responsible for answering questions and handling FMLA violations.
Do you get paid for FMLA?
This is, in part, up to the employer. The FMLA requires only that employers must grant unpaid leave. The law also allows employers to require that any paid vacation, paid family leave, or paid sick time be used during the employee’s FMLA time. Employees using this time must comply with their employer’s policies when wishing to substitute paid leave. When using paid leave during an FMLA leave, their leave is FMLA-protected.
Learn more about New York Paid Family Leave and protecting your job when caring for a close family member after their personal injury.
How does an employee qualify for FMLA?
According to the U.S. Department of Labor, in order to be eligible to use leave in compliance with FMLA, an employee must:
- work for a covered employer.
- have worked for their employer for at least 1,250 hours during the 12 months leading up to the start of their leave. The 1,250 hours of service include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.
- have worked at a location with at least 50 or more employees. These don’t all have to be in the same location if your employer has 50 or more employees within 75 miles
- have worked for the employer for 12 months. These 12 months do not need to be consecutive but are usually accrued within a 7 year period, unless the span of absence is due to active military service, or is governed by a collective bargaining agreement or other contracts.
Who pays for FMLA?
The FMLA requires an employer to grant an eligible employee unpaid leave. Unless the employee elects to use accrued vacation and sick time (or the employer requires an employee to use this accrued time), the period of time off covered by FMLA is unpaid.
Financial support from a family member during this time does not disqualify an individual from their FMLA claim.
How long does an employer have to inform me about my FMLA request?
After filing for FMLA leave, and providing that there aren’t any extenuating circumstances, an employer must notify the individual making the request within five business days if their request will be granted, or give at least one reason why the employee doesn’t qualify for leave under the FMLA.
The designation notice must also state whether paid leave will be substituted for unpaid FMLA leave and whether the employer will require the employee to provide a fitness-for-duty certification to return to work. The employer may simply give verbal notice of this if this policy is already spelled out in an employee handbook or other written document.
What serious health condition qualifies for FMLA leave?
Examples of serious health conditions that would be a qualifying reason for an employee to use FMLA leave are:
- A doctor requires them to stay overnight in a hospital or other medical facility.
- A health condition incapacitates them or inhibits their ability to care for a family member for more than three consecutive days.
- A chronic condition requires them to take at least two periods of time off per year for medical treatment.
- They need time off for a pregnancy including time off for prenatal OBGYN appointments, morning sickness, doctor-ordered bed rest, and birth of a child.
A serious health condition is not the only reason for a family member to qualify for FMLA leave. Other eligibility reasons outlined by the Department of Labor include bonding time after the birth of a newborn child, the adoption of a child, or child taken in foster care.
If FMLA leave is used for a newborn, new adoption, or foster care child who has a serious health condition, the eligible employee has the right to take leave to care for the child intermittently, if medically necessary. This leave is not subject to the 12-month limitation.
A person may also request to take care of an immediate family member (spouse, child, or parent) with a serious health condition. A person cannot; however, use the leave to care for the employee’s parents “in-law.”
For a military family, an employee is eligible if one of their family members is on covered active duty, or is called to covered active duty as a member of the armed forces, the guard, or reserve.
Eligible employees are also allowed under the current regulations to take up to 26 workweeks of unpaid, job-protected leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness.
Are chronic conditions covered under the FMLA regulations?
Employees can continue to use their leave for any period of incapacity or treatment due to a chronic serious health condition. The guidelines of the act define a chronic serious health condition as:
- One that requires “periodic visits” for treatment by a health care provider or nurse under the supervision of the health care provider. “Periodic visits,” are defined as at least twice a year.
- A condition that continues over an extended period of time.
- An injury or illness that causes episodic rather than continuing periods of incapacity.
What is not covered under FMLA?
This act is designed to help deal with employee’s own serious health conditions that make them unable to perform their work, or for help with an employee’s family member with a serious medical condition who is unable to care for themselves.
It is not intended to be used by an employee as vacation or sabbatical time.
Who determines FMLA eligibility?
To be eligible for FMLA leave, employers may require that a request be accompanied by some sort of medical certification from your doctor prior to the start of your leave. The employee may have up to 15 calendar days to provide the certification outlining the qualifying reasons why they need to take FMLA time. After the employee has provided their FMLA eligibility, an employer may request a second or third medical opinion, but this must be done at the employer’s expense.
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Can you be denied FMLA?
The federal government doesn’t allow an employer to deny covered employees their request for FMLA time off. If the employees have gone through the proper procedures for taking FMLA leave, the employer must grant the request.
Am I eligible for FMLA after an accident?
After a serious accident on Long Island, you may need a substantial amount of time to recover. Be sure to have an experienced personal injury attorney on your side to make sure you take the correct steps after a serious accident to apply for FMLA benefits.
Learn more about how to protect your job after a personal injury.
There are numerous financial and legal issues that must be addressed after a serious accident. If you have questions about Family and Medical Leave Act eligibility and how it will impact your case, contact the aggressive personal injury attorneys Rosenberg & Gluck, LLP today for a free consultation.