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Monday, November 9, 2015

An Overview of the Family Medical Leave Act (FMLA) --

Frequently, I receive questions from my clients regarding whether an employee is permitted to take time off for a medical condition, for the birth of a child, or to care for a family member.  I would like to give a definitive answer but, like most areas in the law, it all depends on the facts. Specifically, whether an employee is entitled to leave, how much, and must the employer pay for the leave time and hold the employee's job open for his or her return, depends on whether the employee is qualified for, and the employer covered by, a specific federal or state law. This piece will attempt to provide some information but as I have stated in previous postings, you should consult with your own attorney for guidance in your own situation.

The Family Medical Leave Act is a federal law that allows employees to take significant time off from work to take care of a loved one with an illness, medical problem or condition. The law does not require an employer to pay the employee for the time missed, but allows the employer to substitute accrued paid vacation/sick time for unpaid leave taken during the FMLA, meaning that the employee’s leave cannot be extended beyond the statutory period by using his or her vacation time. The FMLA prohibits employers from enforcing any negative consequences against the employee for exercising his or her rights under the FMLA. These would include termination, cutting back on hours, reducing pay, or diminishing the employee’s title or responsibilities.

The FMLA applies to businesses with more than 50 employees. To qualify, an employee must have worked for the employer for at least one year and must have worked at least 1250 hours in that year. The law allows the employee to take up to 12 non-consecutive weeks of unpaid leave a year to care for a spouse, parent or child who has a serious medical condition. There is special consideration given to family members caring for ill military service members. The parents, spouses, and children of these individuals are permitted to take up to 26 weeks off each year to care for their loved one. 

The most common use of the law is to allow an employee to take time off work after a child is born, even though most would not call pregnancy a “serious medical condition.” This is commonly referred to as maternity leave. Although it is not customarily exercised, fathers have an equal right to take time off to bond with their children after birth. The FMLA also allows new parents to take time off work immediately after an adoption. Some people use the Family Medical Leave Act to care for family members dealing with mental health issues, including dementia, addiction, or schizophrenia. The law covers any medical condition which require an overnight stay in the hospital, chronic conditions that require treatment at least twice a year, and conditions that incapacitate the affected person for more than three consecutive days. 

Many states (New Jersey is one example) have their own versions of the FMLA. Some cover the same categories of leave as the FMLA but others do not. For example, New Jersey's Family Leave Act (FLA) does not cover leave for one's own illness or medical condition. However, a qualified employee working for a covered employer is entitled to take the greater of the benefits granted either by the FMLA or their state law. In some instances, the employee can enjoy the benefits of BOTH leaves, which would give the employee additional time off than would be permitted by either the FMLA or the state law by itself.

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