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Home » Not Everyone is Entitled to FMLA Leave, But How Do You Know?

Not Everyone is Entitled to FMLA Leave, But How Do You Know?

by | Jan 15, 2023 | Employment Law

Most employees have at least heard of FMLA Leave, but not everyone understands what it takes to qualify for leave. This article will provide an overview of the Family and Medical Leave Act, better known as the FMLA, and explain the requirements that need to be met for an employee to be entitled to that leave.

What Does the FMLA Provide to Eligible Employees?

The Family and Medical Leave Act (FMLA) provides eligible employees a maximum of 12 workweeks of unpaid leave each year. During that leave, the employers must maintain group health benefits for the eligible employee, as if they were still working. Employees are also entitled to return to their same or an equivalent position when they return from their FMLA leave.

First, the Employer Must be a “Covered” Employer

Not every type of business or employer is required to provide FMLA leave. So, the first question an employer must ask is whether it is considered a “covered” employer. The FMLA applies to all employers that are public agencies. This includes municipalities, State, and Federal employers, as well as local education agencies such as schools.

As far as private employers, they must have 50 or more employees working for them for at least 20 workweeks in the current or preceding calendar year. This includes joint employers and successors of covered employers.

Second, Is the Employee Eligible?

Even if you the employer is covered by the statute and required to provide FMLA leave, an employee  may not be eligible to take it. The employee must also work at a location where the employer has 50 or more employees within 75 miles. The employee must have worked for that employer for at least 12 months and actually clocked in a minimum of 1,250 hours during that period. Remember that the 1,250-hour requirement includes only those hours actually worked, meaning that sick leave and unpaid leave, including FMLA leave, are not included.

Third, is the Employee Taking FMLA Leave for a Qualified Reason?

There are several approved reasons for taking FMLA leave, and they include the following:

  • for the birth of a son or daughter, and to bond with the newborn child;
  • for the placement with the employee of a child for adoption or foster care, and to bond with that child;
  • to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
  • to take medical leave when the employee is unable to work because of a serious health condition; or
  • for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active-duty status as a member of the National Guard, Reserves, or Regular Armed Forces.

What Constitutes a “Serious Health Condition?”

A common issue that arises with FMLA leave eligibility is whether or not the medical condition that is the basis of the need for leave qualifies for FMLA protection. There are a few key factors considered in determining whether a health condition is considered serious under the statute. If the health condition requires the employee or a family member to stay overnight in a hospital or health care facility or incapacitates the employee or a family member for more than three (3) consecutive days and requires ongoing treatment, it will likely qualify for FMLA leave. Chronic health conditions that are incapacitating and require treatment at least twice a year are also qualifying conditions. Pregnancy and its related treatment needs also qualifies.

What Information is The Employee Required to Provide to The Employer?

Once the employee has applied and been approved for FMLA leave from the employer, it is important to know that the employee may have to provide certain types of information in order to receive the protections that the FMLA provides. For example, the employer may require that the employee provide certification from a health care provider to support the employee’s request. If the employer does, the employee must be allowed at least 15 calendar days to obtain it. If any information is missing from the employee’s medical certification, the employer has to let the employee know that and allow the employee time to correct it. However, the employer is only allowed to contact the employee’s health care provider if that contact complies with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. Employees are not required to provide medical records to the employer or sign a medical release.

What Happens When the Employee is Ready to Return to Work?

Once the employee’s FMLA leave has ended and it is time for him/her to return, depending on the health condition that required the employee to take leave, the employer may request a fitness-for-duty certification before returning to work. However, the employer must have a uniform policy requiring that certification that applies to all similarly situated employees. The certification needs to confirm the employee’s ability to perform the essential functions of their position.

What if the Employer Wants to Place the Employee in a Different Position?

The FMLA only requires that the employer return the employee to either the same job or one that is nearly the same. So, what does that mean exactly? If the employee is not returned to the same job, the nearly identical job must, among other things, offer the same shift or general work schedule, not require a significant increase in commuting time or distance, involve the same or substantially similar duties, responsibilities, and status; and offer the same pay and benefits.

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