The federal Family & Medical Leave Act of 1993 established the right for certain employees to take up to 12 weeks of unpaid leave in a 12-month period due to special family or medical circumstances. Unfortunately, many employers and employees remain unaware of the FMLA’s protection and requirements. Hopefully, this blog series will dispel some of the confusion.

First, not every employee is eligible for FMLA leave. If your company employs less than 50 employees at your facility or within 75 miles of where you work, you are not eligible. If you have not been employed by the company for at least a year, or you have not worked 1250 hours for the company in the last year, you are not eligible. There are some ways employers with less than 50 employees may become covered employers, but I’ll leave that for another blog. Generally, the multitudes who work for small employers will not gain any protection from the FMLA.

If you do work for a covered employer and meet the time requirements, then FMLA leave is available to you for the following special circumstances:

• Birth or adoption of a child
• Foster care placement of a child
• To care for an immediate family member (child, spouse or parent) with a serious medical condition
• To seek treatment for one’s own serious medical condition.

The FMLA defines a “serious health condition” very broadly. Being out sick for more than three days for a condition requiring a doctor’s care is covered. Also, conditions that are chronic or require periodic time off for treatment like dialysis or physical therapy are covered. FMLA leave does not have to be taken all at once, or even in days or weeks. Intermittent FMLA leave may be used in increments as small as one hour enabling an employee to attend appointments for treatment of covered conditions and miss an hour or so of the workday on an ongoing basis.

The FMLA has been around long enough that covered employers should know who they are and have forms and procedures to handle requests for leave. An employee does not have to mention the FMLA when asking for time off, but should give the employer enough information to be aware that the FMLA may be applicable. Asking for a pregnancy leave gives the employer adequate notice. Simply calling out sick does not. A sick or injured employee may have someone else communicate the information and request leave on his or her behalf. Employees should give the employer as much advance notice as possible. A minimum of thirty days notice is required if the employee is aware of his or her intent to request leave, for example, in the case of pregnancy or an elective surgery.

Once the employer is aware of a potential leave situation, the employer must designate the leave as FMLA leave and give the employee written notice of the employee’s FMLA rights and obligations within 48 hours. Often, employers forget this requirement and it may result in the employee being entitled to extended leave. Employers may ask the employee to complete and return a physician certification documenting the serious medical condition. Employers may ask employees (or someone on their behalf) to regularly report their status while on leave. Employers may also require an employee to provide a doctor’s note clearing the employee to return to work. If the employee fulfills these requirements, then the employer must allow the employee to return to his job or a similar position with the same pay and benefits at the end of the leave.

It is illegal for an employer to interfere with the employee’s right to leave by delaying it or denying it altogether. It is also illegal for an employer to retaliate against an employee for requesting or taking leave. In the next few blogs, I’ll examine the most common situations in which the process can break down and ways to ensure your rights are protected.