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Get Familiar with Employee Leave Fundamentals Under the FMLA

By Ashley Kaplan, Esq. on 7/27/2015
Get Familiar with Employee Leave Fundamentals Under the FMLA 

The Family and Medical Leave Act (FMLA) was established in 1993 to allow employees to take reasonable unpaid leave for certain family and medical reasons. The legislation intends to “balance the demands of the workplace with the needs of the families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” In other words, it helps employees uphold the demands of work and family in specific situations – without the risk of losing their jobs or benefits.

The FMLA was amended on January 28, 2008 — its first expansion since 1993 — to provide leave to employees with family members serving or injured on military duty. On October 28, 2009, the FMLA was amended again to expand the two types of military family leave that first became available under the FMLA in January 2008. In February 2013, the DOL published final regulations addressing the amendments made in 2009.

First Things First: FMLA Eligibility

The FMLA applies to you if you have 50 or more employees on the payroll (including part-timers and employees on leave) in 20 or more workweeks (not necessarily consecutive) in the current or preceding calendar year. The FMLA also applies to public agencies, including state, local and federal employers, and local education agencies – regardless of the number of employees.

Assuming you’re a covered employer, your employees are eligible for FMLA if they have worked for at least 12 months and a minimum of 1,250 hours. Additionally, they must work at a location where at least 50 of your employees are employed within 75 miles.

You must grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month span for any of the following reasons:

​The birth and care of the employee’s newborn child
The placement of a child with the employee for adoption or foster care
The care of an immediate family member (defined by the FMLA as “child, parent or spouse,” although state and local laws may have broader definitions) with a serious health condition
The employee’s own serious health condition

A serious health condition, under FMLA, is defined as an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or ongoing treatment by a healthcare provider. This serious condition either prevents the employee from performing his or her job tasks, or the affected family members from attending school or doing other routine activities.

The FMLA generally does not apply to routine examinations or checkups (such as physicals, eye exams and dental exams), the common cold, flu, earaches, upset stomachs, headaches other than migraines, or routine dental/orthodontia problems. Treatment for substance abuse may qualify, but only if the treatment is provided by a healthcare professional and other conditions are met.

FMLA and Military-Related Leave

Employees with a child, spouse, or parent on covered active duty status, or called to covered active duty status, in the Armed Forces, including the National Guard and Reserves, may also be entitled to a 12-week leave for qualifying exigencies.

Qualifying exigencies include attending specific military events, arranging for alternative childcare, taking care of financial and legal arrangements, going to counseling sessions, and attending post-deployment reintegration briefings.

In addition, special FMLA leave entitlement allows eligible employees to take a maximum of 26 weeks of leave to care for a family member who is a covered service member during a single 12-month period. A covered service member is someone who is either:

A member of the Armed Forces who is experiencing and going through medical treatment, recuperation, therapy, in outpatient status, or on the temporary retired list for a serious injury and illness
A veteran who was a member of the Armed Forces at any time during the five years before the date of treatment and is going through medical treatment, recuperation, or therapy for a serious injury or illness

Keep in mind you must maintain an employee’s pre-existing group health insurance coverage during FMLA leave. When employees return from FMLA leave, they typically must be reinstated to their original positions with equivalent pay, benefits and other employment terms. The use of FMLA leave by an employee cannot result in the loss of any employment benefit that accumulated before the employee began his or her FMLA leave. Plus, during FMLA-qualifying absences, employees may not be penalized for violating a company’s attendance policy. ​​