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The Family Medical Leave Act: When are you allowed to use it?

August 12, 2015 by Kathryn Carlson

The Family Medical Leave Act: When are you allowed to use it?

In most circumstances company paid sick time is adequate when an employee gets sick, however, occasionally extenuating circumstances occur and more time is necessary. In these situations, the Family Medical Leave Act (FMLA) can be enabled.

Taking effect in 1993, FMLA was created to balance work and life when medical need arises. FMLA can be a complicated concept, but understanding the core points can help you understand, use and implement FMLA when then need occurs.

Employees are entitled to take up to 12 weeks off of unpaid leave during a 12-month period if they have been working for the company for at least 12 months prior to requesting the leave, and if they have worked at least 1,250 hours over that period. Employees may take this leave for their own serious medical condition, or to take care of an immediate family member who has a serious health condition. According to federal law, immediate family members are parents, spouses, and children. Some states offer additional coverage for domestic partners, parent-in-laws, siblings, and grandparents. Additionally, FMLA may also be used for “birth and bonding:” extended parental leave for the birth or adoption, or bonding with a new foster child.

Not only must the employee be eligible for FMLA, but your company must be required to offer it as well. Your company must have at least 50 employees who work within 75 miles of the physical location to fall under the federal FMLA requirements.  Many states have similar laws and regulations that overlap with the federal FMLA requirements, so prior to providing leave to employees it is important to find out what laws your state has.

When deciding if FMLA is the appropriate leave for an employee, employers should consider the interpretation of “son“ or “daughter” issued by the Department of Labor under the Family and Medical Leave Act (FMLA).  The Administrator’s interpretation gives employees, who care for a child, parental rights to family leave regardless of the legal or biological relationship. The “son” or “daughter” being defined is under Section 101(12) of the FMLA as it applies to an employee standing “in loco parentis” to a child.

The Administrator’s interpretation was issued by Nancy J. Leppink, deputy administrator of the department’s Wage and Hour Division (WHD).  The following examples of in loco parentis” were provided in the interpretation.

  • An uncle or aunt caring for their young niece or nephew whose parent is on active military duty.
  • A grandparent who assumes responsibility for their ill grandchild when their own child is debilitated.
  • An employee who intends to share in the parenting of a child with his or her same sex partner and wants to bond with that child.

In addition to the rights granted by the FMLA, Massachusetts employees have the right, under state law, to take time off for parenting and for small necessities. Under Massachusetts Maternity and Adoption Leave, employers with at least six employees must give eligible employees up to eight weeks off for the birth or adoption of a child. Additionally, under the Massachusetts Small Necessities Law, Employers with at least 50 employees must give eligible employees up to 24 hours of leave in any 12-month period to:

  • Participate in school activities directly related to the educational advancement of the employee’s child, such as parent-teacher conferences or interviewing for a new school.
  • Accompany the child to routine medical or dental appointments.
  • Accompany an elderly relative (one who is related to the employee by blood or marriage and is at least 60 years old) to routine medical or dental appointments or appointments for other professional services relating to the relative’s care.

If your company is required to provide FMLA and an employee requests leave, have them provide proof of the serious medical condition. Employers are not required by law to request proof, but are entitled to ask. The Department of Labor states that employers should request certification of illness at the time of FMLA request or within five business days. Once you have requested certification, the employee has 15 days to obtain proof. Employers may also contact health care providers for verification.  It is important to carefully and accurately document the conditions of the leave including how long, any additional required documentation, and when the employee is expected to return.

Keep in mind that while a job is guaranteed upon return, it may not necessarily be the same job the employee had prior to taking FMLA. According to the Department of Labor website, "an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment."

FMLA administration can be very complicated.  There are overlapping laws at both that state and federal level. The information provided is not intended to be a complete guideline on FMLA administration.

Do you have questions about FMLA or would like to discuss how KPA's HR management services can help you become more effective and efficient in working with your employees? Contact [email protected]

Posted in: Human Resources Management Tags: employee leave rules, family leave, family medical leave act, fmla, hr administration, leave requests, medical leave