Imagine: You’ve just completed one of the most important presentations of your career, and it went very well. In fact, you’re thinking it went well enough for you to finally approach your manager to discuss your career progression, including a possible salary increase. As you reach your office, your cell phone starts to ring. You flip it open, and in a split second, your dream of moving up the career ladder dissipates in a puff of smoke. A hospital emergency room nurse is calling to tell you that your son fell at school and hit his head. The doctors are still evaluating him, but at the very least, he appears to have suffered brain swelling. As you rush off to the hospital, your previous thoughts of promotion and more money are overwhelmed by your concern for your child. Now facing the likelihood of a long-term absence from work, you’d be lucky just to keep your job, right?
You never know when you might be forced to seek medical treatment for a serious illness or injury for yourself or for a member of your family. If you are employed and have a family, you need to know about the Family and Medical Leave Act (FMLA).
FMLA was enacted in 1993 to “provid[e] employees with better opportunities to balance work and family needs.”1 The United States Department of Labor (USDOL) amended FMLA in 2008, in response to public comments and criticism about how the law was being implemented. The new rules, which were established in an attempt to address common issues like the need for intermittent leave, went into effect in 2009.
Understanding the law’s protections and how they can be applied to your situation can be a challenge. Following are some key provisions and recurring challenges experienced by those who have used FMLA.
FMLA entitles eligible employees of covered employers to take up to a total of 12 weeks of unpaid leave during a 12-month period for any of the following:
• Birth of a child;
• Placement of a child in your home through adoption or foster care;
• Caring for a newborn or newly placed child;
• Caring for a spouse, parent, daughter, or son with a serious health condition;
• Being unable to work due to your own serious health condition;2 or
• A “qualifying exigency” because your spouse, daughter, son, or parent is on active duty or called to active duty as a member of state or federal National Guard or Reserves in support of a contingency operation.3
Are You Eligible?
First, make sure you’re eligible for time off under FMLA. You must have worked for your employer for 12 months and have accrued 1,250 hours of service during the previous year to be eligible. Second, make sure you work for a covered employer; FMLA only applies to employers with 50 or more employees. You must be employed at one of your employer’s locations within the United States (including U.S. territories and possessions) that has at least 50 employees employed within 75 miles of the primary office or work site.
Job Protection, Not Income Supplement
FMLA leave is unpaid because the law is intended to protect your job, not supplement your income. Even if you are granted leave under this law, you won’t necessarily receive full or even partial wages or salary. FMLA allows employers to grant this unpaid time off concurrent with other types of paid leave, including vacation or leaves of absence, but they are not required to do so. Also, know that if you do elect to take paid time concurrently with FMLA leave, your employer’s normal paid leave policy still applies. So, you might end up using all your accrued vacation time for an FMLA-eligible need and then be left with no vacation for the current year.
How Serious is “Serious”?
The FMLA’s definition of a “serious health condition” is complex but basically includes illness or injury that:
• requires an overnight hospital stay;
• involves continuing treatment by a health care provider;
• involves or relates to pregnancy or prenatal care;
• involves treatment for a chronic health condition; or
• is permanent or long-term and might not respond to treatment.
Special rules apply to some of these definitions, so be sure to consult your human resources department to fully ascertain whether your situation qualifies as a serious health condition.
During the FMLA regulation amendment process, the USDOL identified certain issues that prove consistently challenging for employers and/or employees when implementing FMLA, two of which include intermittent leave and medical certifications. So make an extra effort to understand your rights and responsibilities in these areas:
1. Intermittent leave: The law allows employees to take time off in unscheduled blocks of time that might be less than a full day at a time and might not occur at regularly foreseeable periods, as is often the case with chronic illnesses, such as diabetes or asthma. This provision is a particular source of concern for employers. The rules don’t mandate a specific notice requirement but says notice for this type of leave should be given “as soon as practicable.” Address any perceived abuse of the system by always giving prompt notice when you need to take this type of leave.
2. Medical certification: Although you don’t have to provide actual medical records, and your employer may not call your doctor, employers have the right to request a medical certification for FMLA time taken for a serious health condition. They can also request periodic recertification and clarification of information provided in the certification. Your direct supervisor cannot be the person who receives the clarifying information. Some bosses will try to do this, so always talk to your human resources representative if you need help asserting your rights in this area.
Other areas to pay special attention to include the designation of leave as FMLA time and the time frame within which you and your employer must give need for leave and notice of approvals.
The best way to benefit from this law is to be informed, so also consult the USDOL FMLA website (http://www.dol.gov/whd/fmla/index.htm) for more detailed information.
1. “Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for Information,” Fed. Reg. vol.72, No. 124, 2007.
3.”The Family and Medical Leave Act of 1993 Fact Sheet,” Department of Labor/Wage & Hour Division, Revised 2/2010, available at http://www.dol.gov/whd/regs/compliance/whdfs28.pdf.