The Family Medical Leave Act of 1993 (FMLA)

Dec 16, 2010

PBA Legal Services often receives calls from members with questions regarding their rights under the Family Medical Leave Act (FMLA). The questions most often involve their employer either misapplying the law by mistake or outright ignoring its provisions.

The FMLA allows eligible employees to take up to 12 weeks of unpaid leave in a 12-month period for certain family and medical reasons. The Act was amended in 2009 to allow eligible employees to take up to 12 weeks for any "qualified exigency" arising out of the fact that a covered servicemember is on active duty, or has been notified of an impending order to active duty. The 2009 Amendment also allows eligible employees to take up to 26 weeks of unpaid leave in a 12-month period to care for a covered servicemember with a serious injury or illness.

Frequently Asked Questions:

1. Who is an eligible employee?

An eligible employee must (a) work for a covered employer; (b) have worked for the employer for a total of 12 months, which need not be consecutive; (c) have worked at least 1,250 hours over the previous 12 months; and work at any location in the United States or in any United States territory or possession where at least 50 employees are employed by the employer within 75 miles.

2. What is a covered employer?

The FMLA applies to all public agencies, including state, local and federal employers, local schools, and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year. All public law enforcement agencies are therefore covered by this law.

3. What are the reasons for granting leave?

• An eligible employees must be granted up to 12 weeks of unpaid leave:
• for the birth or care of a newborn child;
• for placement with the employee of a child for adoption or foster care;
• for a serious health condition that makes the employee unable to perform the essential functions of his or her job;
• to care for a spouse, son, daughter, or parent with a serious health condition;
• for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves.
• for a serious health condition that makes the employee unable to perform the essential functions of his or her job
• An eligible employee must be granted up to 26 weeks of unpaid leave to care for a spouse, son, daughter, parent or next of kin, who is a current member of the Armed Forces, including National Guard or Reserves, and has a serious injury or illness.

4. Must my employer maintain my health benefits?

Yes. A covered employer is required to maintain health insurance for an employee on FMLA leave. However, the employee is still required to pay their portion of the insurance premium while on FMLA leave.

5. Can my employer substitute accrued paid leave to cover FMLA leave?

Yes. Under certain circumstances, your employer can substitute accrued vacation or sick leave to cover some or all of your FMLA leave.

6. Is my job protected while on leave?

Yes. Upon returning from FMLA leave, you must be restored to your original job, or to an equivalent job with equivalent pay, benefits and other terms and conditions of employment.

7. How much notice must I give my employer?

If the reason for taking leave is foreseeable, you must give your employer 30-days notice of your need to take leave. If the reason is not foreseeable, you must notify your employer as soon as practicable.

8. Must I specifically assert the FMLA when requesting leave for a qualifying reason?

When you request leave for the first time, you do not need to expressly assert FMLA rights. However, if you request leave for a qualifying reason for which the employer has previously provided FMLA leave, you must specifically reference either the qualifying reason or the need for FMLA leave.

Should you have more questions, please feel free to contact PBA Legal Services at 1-800-233-3506.