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Family & Medical Leave Act (FMLA)Guest WritersHR Best PracticesFeaturedUSERRADecember 4, 2012by Stanton LawThe Basics: Employer Overview of Family & Medical Leave

A.             Definition of Family Medical Leave

Family Medical Leave (FML) is a benefit that eligible/covered employers are required to offer to all eligible employees.  FML was created by the Department of Labor (DOL) through the Family Medical Leave Act of 1993 (often referred to as “FMLA”).


Family Medical Leave was designed to provide a means by which employees could balance their work and family life by taking unpaid leave for certain family and medical reasons.


Family Medical Leave allows eligible employees of covered employers to take a maximum period of time away from work.  During a qualified leave of absence, employees have unpaid, job-protected leave with continuation of group insurance coverage under the same terms and conditions as if they had not taken leave.

B.             Employer Eligibility under the Family Medical Leave Act

The US Department of Labor (DOL) has set forth laws and regulations for Family Medical Leave.  Under these laws, there are “eligible employers” and “eligible employees.”  An eligible employer is defined as:

  • a private sector employer
  • an employer employing 50 or more employees for at least 20 work weeks in the current or preceding calendar year (within 75 miles of that worksite)

As a covered or eligible employer, an employer must comply with all rules and regulations set forth by the US Department of Labor regarding the Family Medical Leave Act and how it is to be administered.

C.            Employee Eligibility for Family Medical Leave

To be eligible for FML, an employee must:

1.   Have been employed by the employer for at least 12 months, and

2.   Have at least 1,250 hours of service during the 12-month period immediately preceding the leave

A Couple Notes on Employee Eligibility:

1.   The hours of service are counted for the 12-month period immediately preceding the leave and generally must be actual hours worked by the employee.  Hours the employee is on leave (paid or unpaid) do not count toward the required 1,250 total hours of service required for meeting employee eligibility for leave.

2.   Please note, employee eligibility may be retested or recalculated at the beginning of a new 12-month period or if an employee requests FML for a different reason in the same 12-month period.  For example, if an employee requests leave in June and is denied because he/she hasn’t worked the required 1,250 hours, the employee may request leave again next June and the total hours of work will be recalculated using the current 12-month period.

D.   Special Eligibility Rights for Military Service and Select Airline Employees

Uniformed Service Employment and Reemployment Rights Act (USERRA)

Pursuant to the provisions of the USERRA, time spent by an employee fulfilling his or her National Guard or Reserve military obligation may be credited toward the employee’s eligibility under the FMLA.

Airline Flight Crew Technical Corrections Act (AFCTCA)

The AFCTCA establishes a special hours of service eligibility requirement for airline flight attendants and flight crew members: an airline flight attendant or flight crew member meets the hours of service requirement if, during the previous 12-month period, he or she:

  • Has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent); and
  • Has worked or been paid for not less than 504 hours, not including personal commute time, or time spent on vacation, medical, or sick leave.

Airline flight attendants and flight crew members continue to be subject to the Family Medical Leave Act’s other eligibility requirements.

E.      Qualified Reasons for FMLA Leave

Eligible employees of covered employers are entitled to FMLA leave for:

  • The birth of a child and to care for the newborn child;
  • The placement of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • Care for a family member with a serious health condition;
  • Certain military-related reasons (see next section for more detail), or
  • The employee’s own serious health condition (see next section for more detail) that makes the employee unable to perform the functions of his or her job.

Certain military-related reasons:

  • Qualifying Exigency leave provides an eligible employee with up to 12 workweeks of job-protected Family Medical Leave in the applicable 12-month period to use for “any qualifying exigency” arising out of the fact that a spouse, son, daughter, or parent is a military service member on “covered active duty.”
  • Military Caregiver leave provides an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered military service member with a serious injury or illness with up to 26 workweeks of leave during “a single 12-month period” to care for the covered military service member.

NOTE:  An employer may require an employee to submit certification supporting a request for qualifying exigency or military caregiver leave.

Serious Health Condition Categories:

The Family Medical Leave Act defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.  Serious Health Condition Categories include the following:

  • Overnight/inpatient hospital care;
  • Absence plus treatment (incapacity of more than three consecutive calendar days plus additional care);
  • Pregnancy;
  • Chronic conditions requiring treatments;
  • Permanent/long-term conditions requiring supervision; or
  • Multiple treatments for non-chronic conditions.

A few examples of conditions that can qualify an employee for leave (provided the specific criteria of one of the serious health condition categories are met) include allergies, Alzheimer’s disease, asthma, diabetes, mental illness, removal of cancerous growths, or stroke.

Not all conditions listed above will meet the criteria of an FMLA-defined serious health condition.  The employer uses the guidelines set forth by the DOL to determine whether a request for Family Medical Leave meets the approved criteria.

F.    Duration of Family Medical Leave

Qualified Employees can take up to:

  • A total of 12 workweeks in any 12 months.
  • Up to 26 workweeks in a single 12-month period to care for a covered military service member with a serious injury or illness.
  • Intermittent leave may be allowed under certain circumstances.  Such leave may require additional medical certification from a provider.
  • Spouses who are both FMLA-eligible and are employed by the same covered employer may be limited to a combined amount of leave time.

G.            Requesting Family Medical Leave

An employee may request Family Medical Leave by simply making a request verbally or in writing to the appropriate person at least 30-days before a foreseeable leave.  The employee will then be contacted via written notice within 2-business days of the request.  This communication is a FMLA-required specific notice that includes the next steps an employee must make in order to process the request.

H.            Employee Rights Under the Family Medical Leave Act

During Family Medical Leave, an employee has the right to maintain health coverage under the employer’s group medical plan.  The employee is responsible for his/her share of the premium payment during leave.  The employee will not lose any employment benefit that accrued prior to the start of his/her Family Medical Leave.

Upon return from Family Medical Leave, an employee will likely be returned to his/her original or equivalent position with equivalent pay, benefits, and other employment terms.

I.       Employee Responsibilities Under the Family Medical Leave Act

While the employer has certain rules and regulations that must be followed to administer FMLA, a qualified employee also has certain responsibilities in order to maintain the benefit of FMLA.  Specifically, an employee must:

1.   Plan his/her leave in advance of the arrival of a child or for treatment of a foreseeable serious health condition;

2.   Pay his/her share of insurance premiums within a 30-day grace period during FMLA leave;

3.   Schedule treatment of a serious health condition to avoid undue disruption of business;

4.   Provide notice verbally or in writing at least 30 days before a foreseeable leave for planned medical treatment for a serious health condition or the birth or placement of a child;

5.   Provide notice “as is reasonable and practicable” of the foreseeable need for “active duty” leave under FMLA;

6.   Update the employer as soon as possible regarding updates, changes or extensions of the dates of scheduled leaves;

7.   Provide timely and complete medical certification of a serious health condition, either their own or a family member’s;

8.   Supply periodic reports, if requested;

9.   Provide certification of fitness for duty upon return to work, if required.