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

April 07, 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.

If they have been working at their place of employment for at least 12 months and have worked at least 1,250 hours over that period, employees are legally allowed to take up to 12 weeks unpaid leave over a 12-month period.  This leave is available for an employee’s personal illness or for an immediate family member who has a serious health condition. Federal law states that immediate family members are parents, spouses, and children. Some states offer additional coverage for domestic partners, parent-in-laws, siblings, and grandparents. “Birth and bonding” is also applicable under FMLA, which is extended parental leave for birth or adoption or bonding with a new foster child.

For an employee to be eligible for FMLA, their company must be eligible as well. The 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 niece or nephew whose parent is on active military duty.
  • A grandparent who assumes responsibility for their ill grandchild.
  • 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.

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. To learn more about FMLA, outsource some of your HR functions, add HR management software tools, or discuss utilizing our HR consulting services , contact [email protected].


Posted in: Human Resources Management Tags: family leave act, FMLA, FMLA daughter definition, FMLA son definition, in loco parentis, paid days off, sick day management, time off management