Firm Home

Richard L. Darst

Significant
Case Reports

Articles

How To
Find A
Lawyer

How To
Analyze
A Case

 

Summary of the
Family and Medical Leave Act
(FMLA)
29 U.S.C. 2601
and Following Sections

1. A covered employer has 50 employees for each working day during each of 20 or more calendar work weeks during the current or preceding year.

Top

2. To be eligible for FMLA, employee must:

A. be employed for 12 months

B. have 1,250 hours of service during the previous 12 month period, and

C. be employed at a worksite where 50 or more employees are employed by the employer within 75 miles.

Top

3. A qualifying event is:

A. The birth or care of newborn child

B. Placement of a child for foster care or adoption, care for same

C. Serious health condition (incapacitation) of the employee's family spouse, child or parent, or

D. Serious health condition (incapacitation) of the employee that renders the employee unable to perform one or more essential functions of the job.

Top

4. A serious health condition is an illness, injury, impairment or physical or mental condition that involves inpatient care in a medical facility or continuing treatment by a health care provider. Serious health conditions include:

A. In-patient hospitalizations.

B. Incapacity for three consecutive calendar days requiring at least two health care provider treatments.

C. Incapacity for more than three consecutive calendar days, one health care provider treatment, and a regimen of continuing treatment, such as prescription medication or therapy.

D. Pregnancy.

E. Chronic conditions involving recurrent episodes of incapacity and periodic treatments by a health care provider.

F. Long-term incapacity with continuing supervision of a health care provider, but not active treatment.

G. Conditions that result in more than three days of incapacity if left untreated and which require time away from regular activities to receive and recover from treatment, such as chemotherapy, arthritis, and dialysis.

H. Substance abuse may be a serious health condition, but the employer may take disciplinary action against any employee whose substance abuse violates the uniformly applied policy prohibiting such conduct, including absenteeism.

Top

5. Benefits

A. 12 work weeks of unpaid leave in any designated 12 month period

B. The leave may be taken as consecutive days or as intermittent days if medically necessary for serious health conditions.

C. A key employee may be temporarily transferred to a same-pay position which better accommodates an intermittent leave request.

D. If husband and wife are both employed by the same employer, they may take only 12 weeks total for pregnancy or adoption.

E. The employer can establish a calendar year, an anniversary year, or a moving year from the date of the current request for leave. (The moving year prevents stacking of leave by employees from 2 consecutive years.)

F. An employer can require that paid leave and FMLA leave run concurrently if the employee is informed starting with the commencement of the FMLA leave. Otherwise, the employee can elect to exhaust accrued leave before the FMLA leave.

Top

6. Procedure

A. The employee must give not less than 30 days advance notice of the intent to take leave, or as much notice as is practical. (The employee can, but is not required to specify FMLA leave).

B. The employer must designate the leave as FMLA leave.

C. The 12 week period commences from the date of designation of FMLA leave by the employer or the date of request for FMLA leave by the employee.

D. The employer may require by written notice a medical certification from the treating physician within 15 days for the date the serious medical condition commenced, the probable duration, and a description of the condition requiring the leave.

E. The employer may pay for a second medical opinion (not by the company doctor).

F. At the conclusion of the leave, the employee must be returned to the same or similar position with the same pay and benefits had the employee not taken leave.

G. The employer can institute a uniform policy that requires an employee returning from FMLA leave as a result of a serious health condition to obtain a medical certification of ability to perform the essential functions of the employee=s job and any limitations.

H. Employees may be required to pay the employer contribution of health insurance during FMLA.

I. Highly compensated employees (top 10% of the employer's highest paid employees within 75 miles of the employee) are exempted from the FMLA.

Top