Family and Medical Leave Act of 1993 (FMLA)

The Family and Medical Leave Act (FMLA) allows employees to take up to 12 weeks of unpaid leave in any twelve-month period for the birth or adoption of a child, to care for a family member, or in the event of the employee’s own serious health condition. Employees can take leave:

• In a continuous block.
• By working on a reduced schedule.
• On an intermittent basis (in some circumstances).

While FMLA leave is generally unpaid, employees may choose (or employers may require the employee) to use accrued paid leave concurrently with the FMLA in certain circumstances. The ability of the employee to substitute (run concurrently) accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy.

Serious Health Condition

Under the FMLA, a serious health condition is an “illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider.”

The condition may be temporary, but must require an absence from work of more than three days and a continuation of treatment or meet other specific requirements. Any condition must meet the objective definitions provided in the law in order to qualify as a serious health condition under the FMLA.

A cold or flu not requiring ongoing medical treatment generally would not qualify an employee for leave, while, typically, an illness requiring hospitalization or outpatient surgery will qualify an individual for leave under the FMLA if all of the criteria are met.

“Serious health conditions” under the FMLA include, but are not limited to:

• Emphysema and severe respiratory conditions (such as chronic asthma)
• Heart attacks and heart conditions requiring bypass or valve operations
• Back conditions requiring surgery or extensive therapy
• Most cancers
• Strokes
• Spinal injuries
• Severe arthritis
• Pneumonia
• Any serious injury caused by an accident on or off the job
• Severe psychiatric disabilities
• Appendicitis
• Emotional distress following a miscarriage
• Migraine headaches

When Employees are Entitled to FMLA Leave

Not all employees are entitled to take leave under the FMLA. First, the employee’s employer must be covered under the FMLA. Then, assuming the employer is covered, the individual employee must meet the criteria to be eligible for FMLA leave.

When it comes to employer coverage, the FMLA applies to:

• Private employers with 50 or more employees.
• All public agencies, including federal, state and local government agencies, irrespective of the number of employees they employ.
• All public and private elementary and secondary schools, irrespective of the number of employees employed.

An employee who works for a covered employer is then eligible if he or she has worked for the employer for at least 12 months and 1,250 hours. Furthermore, he or she must work at a location with at least 50 employees within 75 miles.

Employee Notification Requirements

Employees must follow certain procedures in order to take FMLA leave. If the employee knows in advance that he or she will need a leave, or the employee learns of the need for leave less than 30 days in advance, they must give the employer 30 days notice. If the situation is an emergency, the employee must notify the employer as soon as it is practical.

Interplay Between FMLA and ADA

It is possible for an employee to have a serious health condition that entitles them to leave under the FMLA and a disability that entitles them to leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). If leave is being requested for an employee’s own serious health condition, assessment of the nature of the condition will determine which benefits are applicable and most appropriate. An employer must provide leave under whichever statutory provision provides the greater rights to employees.

While employees qualify for FMLA as described above, they are only qualified for leave as a reasonable accommodation under the ADA if they have a disability defined as a physical or mental impairment that substantially limits a major life activity. Temporary, non-chronic impairments typically do not qualify as disabilities. Examples of temporary impairments include:

• Broken bones.
• Pregnancy.
• Flu.
• Appendicitis.
• Non-chronic infections.

Employees with temporary impairments would not qualify for leave under ADA but may qualify for FMLA leave.

For more information on ADA and FMLA, see Leave Rights under the FMLA and ADA: The Intersection of Two Laws Impacting Employee Leave and Return to Work.

Documentation Requirements

Employers may require that employees requesting FMLA leave submit written medical certification (PDF) to verify any claimed health condition.

Employers may ask a physician to:

• Certify that leave is necessary.
• Indicate the expected length and timing of leave.

Employers may request sufficient information to verify that an employee, or the employee’s ill family member, has a serious health condition, the likely periods of absences and general information about the regimen of treatment. An employer may not require a diagnosis or specific information related to the long-term prognosis. Requests for information should be narrowly tailored and ask only for the information necessary to verify an employee’s eligibility for leave under the FMLA. For more information, read Medical Inquiries.

Employer Requirements During FMLA Leave

While an employee is on leave under the FMLA, employers must:

• Maintain benefits for the individual, such as group health care. (If applicable, the employee must also continue to make payments toward benefits during their leave).
• Allow the employee to return to the same or equivalent job at the end of the leave.

For individuals with documented disabilities, employers may offer reasonable accommodations to minimize leave or offer leave as a reasonable accommodation. Companies should reexamine their leave policies to ensure that they provide the level of flexibility needed to comply with the ADA and reasonable accommodation requirements. Keep in mind; the provisions of the FMLA are wholly distinct from the reasonable accommodation requirements of the ADA.

Special Obligations for Employees who are Members of Military Families

The FMLA’s military family leave provisions provide qualifying exigency and military caregiver leave for employees with family members who are covered military members. Exigency leave allows eligible employees up to 12 weeks of unpaid leave during a 12-month period to attend military events and activities and to address childcare, financial, legal and other issues that arise because the employee’s spouse, son, daughter or parent:

• Is on or has been called to duty.
• Has been notified of an impending call to covered active duty.

Military caregiver leave entitles eligible employees who are the spouse, son, daughter, parent or next of kin of a covered service member to take up to 26 workweeks of unpaid FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness.

For more extensive information about the FMLA, see the elaws (Employment Laws Assistance for Workers and Small Businesses) FMLA Advisor.