Virginia Employment Law Blog
The Family and Medical Leave Act of 1993 (FMLA) is a federal law requiring employers to grant paid leave in certain situations for employees. It was written in order to help American employees take care of their families, loved ones, and themselves in the case of medical necessity. Not all employees are covered and requirements for coverage vary state-by-state.
Are you covered by the FMLA?
The federal FMLA only applies to employers with 50 or more employees within 75 miles of the employee’s jobsite. If you work at a company with less than 50 employees, you generally are not covered. The employee must also have worked for their employer for over a year and worked at least 1,250 hours in the last 12 months. Some states, however, have lessened the threshold for coverage in their state’s version of the FMLA.
The next step to check is if the family member or loved one in question meets the requirement to qualify the employee in question for paid leave. The FMLA only covers the nuclear family: a parent, child, or spouse. For military family members, however, the definition expands to next of kin and adult children. This expanded definition only applies in cases involving medical emergencies and active service, two conditions constrained by strict definitions. Also, some states have added expanded coverage to domestic partners, parents-in-law, and others. Make sure to check if you are separately covered by a state version of the FMLA.
Finally, not all medical situations are covered by the FMLA. If you are incapacitated due to pregnancy, prenatal medical care, or childbirth, you are covered. You are also given time to care for your child after birth or deal with placement for adoption or foster care. When dealing with adoptions or foster care, it is worth noting that you can take leave before placement has occurred to deal with court hearings, traveling to another country, etc.
For any non-birth related medical leave, the only condition to be met is that the person in question is suffering from a serious health condition. So a routine checkup or physical at the doctor would not meet the standard, whereas emergency hospitalization or a serious injury would.
What sort of leave are you entitled to?
Anyone covered by the FMLA is entitled to unpaid, job-protected leave for up to 12 weeks. At your discretion, or the discretion of your employer, previously accrued paid leave may be used instead of unpaid leave.
If your leave is foreseeable, you must give your employer 30 days notice before you begin your leave period. If you have already had to take FMLA covered leave for the same reason you are taking leave now, make sure to inform your employer that it is for the same medical necessity.
What should you do if you feel you have been denied your FMLA rights?
It is not only a violation of your rights to be denied FMLA leave; it is also a violation of your rights to be retaliated against for taking proper leave. If you feel that you were fired, demoted or otherwise retaliated against for taking proper leave, contact an attorney. Remember that an employer may move your position to accommodate leave necessities as long as you are receiving equivalent pay and benefits.
What should I do as an employer?
It is always wise as an employer to have counsel ready to answer questions about any liability the company may have. When terminating an employee or moving an employee’s position, it is especially prudent to ask counsel to examine the company’s liability.