Employer Law Newsletter

FMLA Leave

The federal Family and Medical Leave Act (FMLA or the Act) gives most employees time off from work to deal with urgent personal circumstances. The situations covered by the FMLA include new children, serious illness and military service. This article provides a concise summary of a complex law.

Traditional FMLA Leave

The FMLA was originally passed in 2003, establishing leave allowances for the adoption, birth or foster placement of a child; the serious health condition of an employee; and the provision of care for an employee’s immediate family member with a serious health condition. Covered employers must allow qualified employees to take up to 12 weeks of unpaid, job-protected leave for approved purposes within a 12-month period. However, an employer may choose to adopt a more generous leave policy; the FMLA provides the minimum time off.

Employers covered by the Act include:

  • Public employers: local, state and federal government employers; public agencies; schools
  • Private employers: those with 50 or more employees for at least 20 workweeks within the current or preceding calendar year, including joint employers and successor employers; private schools

Usually, for an employee to be eligible for FMLA leave, certain hours-of-service requirements must be met. Also, an eligible employee must work at a site employing at least 50 people, or employing at least 50 people within 75 miles.

In order for an employee to take FMLA leave for a serious health condition, the condition must be an illness, injury, impairment, or physical or mental condition causing a period of incapacity due to:

  • Inpatient treatment in a hospital, hospice or residential medical facility, or
  • Continuing treatment by a health care provider

The FMLA regulations and case law provide detailed guidance about what constitutes a serious health condition, but generally it is not a minor, short-term ailment. Rather, FMLA leave is to be taken only for a serious medical situation, such as major surgery, heart attack, severe mental impairment, stroke, critical pregnancy-related condition or significant injury from an accident.

Military Family Leave

The FMLA was recently amended to require two new types of military family leave:

  • Qualifying exigency leave: FMLA leave is now mandated for immediate family members of soldiers in the National Guard or Reserves called to active duty in contingency operations. Exigency leave is only for pressing demands including, but not limited to, military events, urgent childcare needs, counseling, and arrangement of financial or legal affairs.
  • Military caregiver leave: FMLA time off is also available to close relatives of current members of the US military when servicemembers need care for serious injuries or illnesses incurred in the line of duty. Military caregiver leave allows for more time off — up to 26 weeks within a 12-month period — than the usual FMLA leave.

Conclusion

FMLA compliance can be challenging for employers; the law permeates several aspects of the employment relationship. Many detailed provisions beyond the scope of this article may apply, including those governing leave calculation, substitution of paid leave, notice requirements, recordkeeping, medical certification and illness duration. Knowledgeable legal advice will help an employer avoid liability for FMLA violations.

To learn more about developing a coherent, comprehensive FMLA policy for your business, or for more information on FMLA compliance or other employment law issues, contact an experienced employment attorney today.

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