The federal Family and Medical Leave Act (FMLA) of 1993 allows employees at companies of 50 employees or more to keep their benefits while taking an unpaid leave to care for their own serious medical condition, that of a child, parent or spouse, or to care and bond with a newborn child or child newly adopted or newly placed in their foster care.
Now 25 years old, the law has been a big step in preserving stability for families facing illness. Employers should be well familiar with its details. Employees certainly are. More of them are filing suit in federal court when they feel their rights have been violated by misapplication of the law.
While pregnancy leave in California is also covered by the California Family Rights Act (CFRA), this post covers leaves under the federal law. There are three components for eligibility: companies must have 50 employees or more, that work in locations within 75 miles. To take advantage of a leave, the employee needs to have worked for 12 months in the preceding seven years, and at least 1,250 hours in the proceeding 12 months. Under this calculation, many part-time employees qualify for FMLA, something some employers tend to overlook, thinking it only applies to full-time employees. Even if employees do not receive health care benefits (which remain in force during the unpaid leave), part-time employees can take advantage of the law to ensure they can return to their jobs when their leave expires.
Employers can and should ask employees to complete a certification process. That is, they can require that a physician fill out a form attesting to the employee’s illness or incapacitation, or that of the family member they are caring for. This can and should be an innocuous document; it doesn’t need to detail a specific medical condition, and no medical records are required to be submitted to the employer.
Things can get tricky when an employee has existing sick leave, vacation time, or paid time off (PTO). The law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period.
Employers should outline their specific policy regarding FMLA in its employee handbook. Employees considering leave should be encouraged to first discuss the topic with HR, rather than their manager, as HR professionals will likely better understand the law and can guide both employee and manager in structuring and approving leaves.