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The Family and Medical Leave Act affects both the employee and
the employer. The employer is cautioned to know the mandates
of this act before any employee is admonished or
employment terminated for any provisions listed in the act.
We urge all employers to become familiar with the act, even those
not required to adhere to the act. This
recommendation/advisory is made because local law or court cases
may requirement similar treatment for all employer/employee
relationships regardless of size.
1. What is the Family and Medical Leave Act
(FMLA)?
The Family and Medical Leave Act (FMLA) is a federal law that
provides unpaid, job-protected leave to eligible employees, both
male and female, in order to care for their families or themselves
for specified family and medical conditions.
FMLA provides eligible employees with up to 12 work-weeks of
unpaid leave in a 12 month period for the birth, adoption, or
foster care placement of a child; care of a spouse, son, daughter,
or parent with a serious health condition; or their own serious
health condition which causes an inability to work. If you qualify
and have unused FMLA leave time, your employer cannot deny you
FMLA leave.
2. Which employers are covered by
FMLA?
FMLA covers private sector employers with 50 or more employees.
Part-time employees are counted toward the 50 employee minimum.
Public employers are covered regardless of the number of workers
they employ.
3. Which employees are eligible for FMLA?
To be eligible, an employee must have worked for the employer
at least 12 months and at least 1,250 hours within a 12-month
period before the leave begins. The employer must employ at least
50 workers at or within 75 miles of the worksite.
4. What is a "serious health
condition" under FMLA?
A "serious health condition" under FMLA includes,
illness, injury impairment, or physical or mental condition that
involves: in-patient car, defined as an overnight state in a
medical facility, and any related incapacity, and continuing
treatment by a health care provider which includes at least one of
the following:
a) More than 3 consecutive days of incapacity and any
subsequent treatment or period of incapacity related to the
same condition that also involves 2 or more treatments
(including examinations) by a health care provider; or one
treatment which results in a regimen of continuing treatment
using prescription medicine or special equipment under the
provider’s supervision;
b) Any period of incapacity due to pregnancy even if the
treatment is not received during the absence of prenatal care;
c) Any period of incapacity or treatment for a chronic
serious health condition requiring periodic treatment even if
treatment is not received during the absence;
d) A long-term or permanent period of incapacity; or
e) Any period of absence for multiple treatments and
recovery from the treatments by a health care provider for
restorative surgery or for a condition that would likely
result in more than a 3 day period of incapacity if left
untreated.
If an employee’s or family member’s illness occurs over a
weekend, holiday, or vacations, the "more than 3-consectuive
-day period of incapacity" may required only a day or two
FMLA leave from work.
5. How does an employer confirm a
"serious health condition?"
An employer may require a medical certification that gives
medical facts that confirm the type of serious health condition.
If the certification is for the employee’s own serious health
condition, it may require information on the employee’s
inability to perform essential job functions.
Am employer may require additional medical opinions at the
employer’s expense.
6. What’s the deadline for submitting a
medical certification?
An employee has a minimum of 15 calendar days following the
employer’s written request to submit a medical certification.
7. When does an employee’s "serious
health condition" qualify for FMLA?
An employee with a serious health condition qualifies for FMLA
leave when he/she is unable to perform any one of his/her
essential job functions or must be absent in order to receive
medical treatments for that condition.
8. When does an employee qualify for family
leave?
An employee qualifies for FMLA leave for family purposes when
he/she is needed to care for a family member with a serious health
condition. Covered care includes, physical or psychological care
to provide basic medical, hygienic or nutritional needs or comfort
and reassurance to alleviate a psychological condition during
in-patient or home care.
9. How can an employee ensure leave is counted
as FMLA leave?
An employee must notify the employer of the need to take a
leave for a reason that qualifies under the FMLA. Although the
employee does not have to mention the FMLA or assert his/her
rights under the law when requesting leave, the employee must
provide sufficient information to indicate the leave is for an
FMLA qualifying purpose. The notice can be verbal or written.
10. What type of notice is required to
request FMLA leave?
An employee must give 30 days notice prior to taking leave when
the need is foreseeable.
If the need for leave is unforeseeable, notice must be given as
soon as practicable, which means within one or two working days of
becoming aware of the need for leave.
The notice must include information indicating the leave is
covered under FMLA and specify the timing and duration of the
leave.
If additional leave is needed, the employee must notify the
employer that the continuing leave is for an FMLA qualifying
reason.
Another adult may give notice of the need for FMLA leave on the
employee’s behalf when he/she is unable to do so personally.
11. What is an employer required to do in
response to an employee’s FMLA leave request?
The employers is required to determine whether the leave
qualifies under FMLA leave or ask the employee for more details in
order to make a determination.
If the employee qualifies, the employer must tell the employee
that the leave will be counted FMLA leave and how much FMLA leave
will be recorded.
The employer is then required to notify the employee of the requirement
s for maintaining benefits and protection during leave and his/her
rights upon returning from leave.
12. What happens if FMLA leave was designated
correctly?
If an employee takes leave for an FMLA qualifying reason but
the employer did not designate the absence as FMLA leave, the
employee must notify the employer within 2 business days of
returning to work that the leave was covered under FMLA.
Otherwise, the leave will not get FMLA protection.
13. How much leave can be taken at one time?
FMLA leave can be taken all at once (12 workweeks); one week
and or a d day at a time; on an intermittent basis in small blocks
of time for a single qualifying condition; or on a reduced
schedule of usual hours. Intermittent and reduced schedule leave
can be used for the birth, adoption, or foster care placement of a
child only if the employer agrees to it.
14. What benefits does an employee receive
during FMLA leave?
Benefits such as group health insurance coverage must be
maintained during FMLA leave under the same terms and conditions
as if the employer was working. Co-payments normally paid by the
employee when working can be required. A worker has a right to all
benefits as provided during other forms of paid or unpaid leave
and to benefit changes.
15. Can FMLA leave be paid leave?
FMLA allows the substitution of certain types of paid leave for
unpaid FMLA leave if an employee wants it or the employer requires
a substitution.
An employer must apply terms of a collective bargaining
agreement or bargain with the Union before changing the terms.
16. Can FMLA absences be counted against. An
employee under no-fault attendance policies.
No. Absences while on FM LA leave cannot be counted as absences
under employer attendance policies. Employees cannot be penalized
under a no-fault or any other type of attendance policy.
17. What are an employee’s rights upon
returning from FMLA leave?
An employee must be returned to the same job or an equivalent
job held before leave began with the same pay, benefits, and other
terms and conditions of employment. All benefits such as group
health coverage must be maintained upon return to work as if the
employee had not taken leave. On return from leave, vacation based
on hours of work can be affected.
18. How are employees’ FMLA rights
protected?
FMLA protects an employee’s right to use leave and return to
work afterwards. It also prohibits an employer from discouraging,
preventing, or retaliating against an employee seeking or using
FMLA leave, and prohibits an employer from discriminating against
or discharging an employee for FMLA leave related matters.
Employees can file charges for violation of the FMLA with the
US Department of Labor’s Wage and Hour Division.
19. How does the FMLA relate to other laws
and Union contracts?
The FMLA grants employees rights that are independent of other
laws and Union contracts. If other federal and state laws or a
Union contract provide greater benefits than the FMLA, the
employer is obligated to provide the greater benefits and explain
any different requirements.
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