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The Family and Medical Leave Act (“FMLA”) is the primary federal employment law that provides employees with protection from losing their job as a result of a health condition.  Covered employers must provide qualified employees with leave from work and reinstate them to their job upon return.  The law allows for up to a total of 12 workweeks of unpaid leave.

Is Your Employer Covered By the FMLA

Employers with more than 50 employees are covered by the FMLA.

Entitlement to Leave

To be eligible for FMLA leave you must have worked for your employer for a total of 12 months (and have worked at least 1,250 hours over the previous 12 months).

Intermittent Leave

You may be entitled to take FMLA leave intermittently – meaning that you can take time off as needed for your condition, or work on a reduced leave schedule.

What Qualifies For FMLA Leave

Not every medical condition or health related issue entitles you to take FMLA leave.  Your employer must grant you leave for one or more of the following reasons:

  • for the birth and care of the newborn child of the employee;
  • for placement with the employee of a son or daughter for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.

Of these reasons, determining whether you have a serious health condition is the most difficult.

What is a Serious Heath Condition under the FMLA?

“Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either:

Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, including any period of incapacity (i.e., inability to work, attend school, or perform other regular daily activities) or subsequent treatment in connection with such inpatient care; or
Continuing treatment by a health care provider, which includes:

(1) A period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also includes:

·      treatment two or more times by or under the supervision of a health care provider (i.e., in-person visits, the first within 7 days and both within 30 days of the first day of incapacity); or

·      one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy); or

(2) Any period of incapacity related to pregnancy or for prenatal care.  A visit to the health care provider is not necessary for each absence; or

(3) Any period of incapacity or treatment for a chronic serious health condition which continues over an extended period of time, requires periodic visits (at least twice a year) to a health care provider, and may involve occasional episodes of incapacity.  A visit to a health care provider is not necessary for each absence; or

(4) A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective.  Only supervision by a health care provider is required, rather than active treatment; or

(5) Any absences to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than three days if not treated.

Servicemember FMLA Leave

In 2008 and 2009, the FMLA was amended and now entitles eligible employees to take leave for a covered family member’s service in the Armed Forces.

Leave Eligibility and Duration

Eligible employees may take Servicemember leave for either (or both) of the following reasons:

• A “qualifying exigency” arising out of a covered family member’s active duty or call to active duty in the Armed Forces

Leave Duration: Up to 12 workweeks of leave during any 12-month period

• To care for a covered family member (“next of kin”) who has incurred an injury or illness in the line of duty while on active duty in the Armed Forces provided that such injury or illness may render the family member medically unfit to perform duties of the member’s office, grade, rank or rating.

Leave Duration: Up to 26 workweeks of leave during a single 12-month period. (Leave may not exceed 26 weeks in a single 12-month period when it is combined with other FMLA-qualifying leave).

Veterans: The 2009 amendments extends military caregiver leave to close family members of veterans who were members of the Armed Forces (including the National Guard or Reserves) at any point in time within five years preceding the date on which the veteran undergoes medical treatment, recuperation, or therapy.

Reinstatement Rights

If you qualify for FMLA leave, your emloyer must restore you to your original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.  Also, your use use of FMLA leave cannot result in the loss of any employment benefit that you have earned or was entitled to before using FMLA leave, nor be counted against the employee under a “no fault” attendance policy.

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