What is the Family and Medical Leave Act?

By Douglas Lipsky

The Family Medical Leave Act is a federal law that’s designed to provide unpaid leave of up to 12 weeks for people who qualify. To qualify you basically need to be working almost as a full-time employee, because the requirement is that you’ve worked there for 12 months at your employer and that you’ve worked a minimum of 1,250 hours in the 12 months preceding your request for FMLA leave. If you qualify, you do get to take up to 12 weeks and that can be taken in a chunk. Smaller chunks are what we call intermittently and whether or not you’re eligible to take that time is really going to be governed by two things. One is the size of your employer, where you work, and also whether or not you have a serious health condition. So the size of your employer is important because if you work in the private sector, if you work for a private company, then that company needs to have 50 employees within 75 miles of the location that you work at in order for you to qualify for the FMLA. So it’s possible you work for a very large company but you work in a very remote small office in which case you might not actually qualify for FMLA. The other thing to consider there as I said is whether or not you have a serious health condition. Only those with serious health conditions are allowed or eligible to take FMLA leave. In addition to that, you may be able to take FMLA leave if you are caring for a spouse, a parent, a child, adopted children, or foster children who they themselves have a serious health condition. That would include a birth of a child. The FMLA defines a serious health condition as any physical or mental impairment that requires you to either be in a hospital or inpatient treatment with a medical provider or you need to be basically incapacitated. So what that really means is you haven’t been able to work for more than three consecutive days and you’ve been under the care of a healthcare provider. So if it’s the type of thing where if you’ve been out of work for four or more days and you’ve been seeing a doctor undergoing treatment then that would likely qualify as a serious health condition. You would be eligible for FMLA time.

The other aspect of the FMLA is that you have certain rights when you return from leave. So the FMLA basically requires that you be restored to either the job you had when you left or an equivalent position and equivalent there would mean it’s not only the same pay and same benefits but essentially the same sort of opportunities, same so status in, in the company. And the other final protection that the FMLA provides like many of the employment laws is an anti-retaliation provision so you cannot be retaliated against by your employer for having exercised your right to take FMLA leave. Not all FMLA leave is limited to twelve weeks in a year. If you are providing care for a service member, so Army, Navy, Air Force, Marines, in active duty, service member, who’s been injured you can qualify for up to 26 weeks of FMLA leave.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.