Family and Medical Leave Act (FMLA)
What is FMLA?
Congress passed the FMLA to allow eligible employees of covered employers to take 12 or 26 workweeks of unpaid, job-protected leave for specific family and medical conditions. FMLA requires that the employer restore the returning employee to their original job or its equivalent with equal duties, pay, and benefits. An employee’s health benefits must also be retained. In addition to the general rules, there are special FMLA rules for service members or family members of service members, as well as for teachers.
Who is eligible for FMLA leave?
An eligible employee must: (1) have worked for a covered employer; (2) have worked for that employer for at least 12 months; (3) have worked at least 1,250 hours over the previous 12 months; (4) and have worked in a location where the covered employer has at least 50 employees within 75 miles of each other. All public agencies, including public elementary and secondary schools, are “covered” employers. However, colleges, universities, trade schools, and preschools are not covered. Additionally, employees of a school district where the school employs fewer than 50 employees within 75 miles would not be eligible.
What types of leave are FMLA protected?
An employee is eligible for up to 12 weeks of leave (continuous or intermittent) for the following reasons: (1) the birth and care of a newborn within 12 months of birth; (2) the placement with the employee of an adopted or foster child within 12 months of placement; (3) to care for a spouse, child, or parent with a serious medical condition; or (4) when the employee is unable to work because of a serious medical condition. An employee is eligible for up to 26 weeks of leave to care for a spouse, child, or parent who is a covered service member with a serious illness or injury received in the line of active duty.
An employee may also be eligible for qualifying exigency leave if a spouse, child, or parent is called for or is on active duty. See http://www.dol.gov/whd/regs/compliance/whdfs28a.htm for examples of qualifying leave. Finally, if both spouses are employed by the same employer, then the 12 or 26 workweek leave is considered a combined total for both of the spouses (except for personal serious health conditions).
What is a “serious health condition”?
A serious health condition is an illness, injury, impairment, physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical facility OR continuing treatment by a health care provider. Continuing treatment can include: (1) a period of incapacity lasting more than three consecutive days with either two or more treatments (such as doctor’s visits) under the supervision of a health care provider OR one treatment by a health care provider and a continuing regimen of treatment (such as physical therapy or prescriptions); (2) a period of incapacity relating to pregnancy or prenatal care; or (3) a period of incapacity relating to a chronic serious illness.
For more on serious health conditions, see http://www.dol.gov/whd/regs/compliance/whdfs28.htm. For health care provider certification forms relating to serious health conditions, see http://www.dol.gov/whd/forms/WH-380-E.pdf (employee’s condition) OR http://www.dol.gov/whd/forms/WH-380-F.pdf (family member’s condition).
FMLA and other forms of leave
An employee does not need to specifically ask for FMLA leave when requesting leave. However, the employer must determine if this leave would qualify for FMLA and then give notice to the employee of its designation. Employees do not have the right to choose whether or not they will take FMLA leave. If the employer requires or the employee desires to have paid leave run at the same time as the FMLA leave, then that is acceptable.
Special rules for “instructional employees”
“Instructional employees” at elementary and secondary schools need to pay close attention to several special FMLA rules. An “instructional employee” is someone who primarily teaches in a classroom or small group setting and can include teachers, coaches, and special education assistants. It does not include non-instructional teacher’s aides, counselors, school psychologists, cafeteria workers, or bus drivers. If an instructional employee wants to take leave from the end of the school year until the beginning of the next year, then the period during summer vacation in which the employee would not have worked will not be counted as FMLA leave.
If an instructional employee needs to take FMLA leave intermittently for more than 20 percent of the working days during the period over which the leave extends, then the employer may request that the employee take longer leave OR temporarily transfer to an alternative position with equal pay and benefits for which the employee is qualified and which better suits the leave needs. This would apply, for example, if an employee requested leave for two days of a five-day workweek for a period of several weeks.
If an instructional employee takes FMLA leave near the end of the term, special rules apply. When the leave begins more than 5-weeks before the end of the term, the employer may require the employee to continue taking leave until the end of the term IF the leave will last at least 3-weeks and the employee would return to work during the 3-week period before the end of the term. When the leave begins during the 5-week period before the term ends, the employer may require the employee to continue taking leave until the end of the term IF the leave will last more than 2-weeks and the employee would return to work during the 2-week period before the end of the term. Finally, if the leave begins during the 3-week period before the term ends, the employer may require the employee to continue taking leave until the end of the term IF the leave will last more than five working days.
If the instructional employee is required to take leave until the end of the term, then only the period of leave until the employee was ready and able to return to work will be counted as FMLA leave. The employer must continue to maintain the employee’s health benefits during the remainder of the leave and to restore the employee to the same or equivalent job.