Family Medical Leave
Qualifying Purposes Under the FMLA
Under the Family Medical Leave Act (FMLA), qualified employees are entitled to take up to 12 weeks of protected medical leave in a twelve month period for certain purposes involving serious medical conditions. The most common qualifying purposes include:
- The birth of a child of the employee;
- The placement of a child with the employee for adoption or foster care;
- To care for the spouse, or a child, or parent, of the employee, if such person has a serious health condition; and
- A serious health condition that renders the employee unable to perform the functions of their position.
Serious Medical Conditions
A “serious health condition” is one that involves inpatient care in a hospital, hospice or residential medical care facility; or continuing treatment by a health care provider. “Continuing treatment” is defined as treatment for an incapacity of more than three consecutive days, which includes multiple treatments by a health care provider or a single treatment that results in a regimen of continuing treatment under the supervision of the health care provider. Ordinarily, the common cold, the flu, ear aches, minor stomach problems, non-migrane headaches, and routine dental problems do not meet the definition of a “serious” health condition and do not qualify for FMLA leave, but they may be considered serious if complications arise.
Not every employee is entitled to FMLA. To be FMLA eligible, an employee must work for a company that employs at least 50 persons within a 75 mile radius of their worksite. Second, an employee must have worked for that company for at least one year and must have accumulated at least 1250 hours during the previous 12 month period. FMLA is not to be confused with a paid leave policy. While employees may receive compensation by virtue of an employer’s sick leave or short term disability policies, the primary purpose of the FMLA is to ensure that the employer does not terminate or replace otherwise performing employees just because they suffer a temporary medical hardship.
An employer may require the that an employee’s health care provider issue a certification that the employee suffers from a serious health condition. If the employer questions the certification, it may require a second opinion from another health care provider. In the event that the opinions of the two health care providers conflict, the employer may require the opinion of a third health care provider, mutually selected by both parties.
Rights Upon Returning from FMLA
Upon returning from FMLA leave, an employer must restore the employee to his prior position or to an equivalent position. An equivalent position is one that is virtually identical in terms of pay, conditions, status, responsibilities and required skills. However, FMLA does not protect an employee from disciplinary actions or reductions in force that would have occurred regardless of the utilization of FMLA leave.
Unlawful Employment Actions
It is unlawful for any employer to interfere with the exercise of any rights provided under the FMLA, which can include:
Refusing to grant qualified FMLA leave;
Discouraging the use of necessary FMLA leave;
Refusing the reinstate an employee upon return from FMLA leave
Tterminating an employee while on FMLA leave; or
Otherwise retaliating against an employee for the use of FMLA leave.