The Family and Medical Leave Act / FMLA: Eligibility and Benefits

A federal law named the Family and Medical Leave Act — frequently referred to as the FMLA — provides eligible employees with unpaid leave for specific family and medical reasons, as well as job protection after the leave. The intent of FMLA is “to balance the demands of the workplace with the needs of families … in a manner that accommodates the legitimate interests of employers.”

There are a number conditions attached to eligibility for leave under the FMLA.

Eligibility Requirements

Specific requirements must be met for an employee to be protected by the FMLA, including employer size (in some cases) and length of employment. In addition, the reason for the leave must fall into one of several categories.

Covered Employers

All public agencies — federal, state, and local — are covered by FMLA, regardless of size. All public and private elementary and secondary schools are also covered, without regard to size.

Employees of other private-sector employers are protected only if the business has 50 or more employees within a 75-mile radius of the employee’s worksite. This requirement is met if an employer had 50 or more employees during 20 or more workweeks in the current or preceding calendar year, including joint employers or successors to covered employers.

Eligible Employees

An employee of a covered employer will have FMLA protection if the employee worked for the employer for at least 12 months (not necessarily consecutive) and 1250 hours within the last 12 months. Special rules apply to airline employees. Elected officials are not covered by FMLA.

Allowable Reasons for FMLA Leave

To qualify for FMLA protection, an eligible employee may take leave for one of these specific reasons:

• caring for a new child, including birth and placement for adoption or foster care
• caring for a seriously-ill family member, including a spouse (same sex and common law spouses are covered), child (under age 18 or over 18 with a qualified disability, including children of same sex couples, regardless of legal or biological relationship), or parent (not including in-laws)
• treating the employee’s own serious illness
• caring for an injured family service member who was deployed overseas for at least 12 months
• addressing qualifying exigencies resulting from a family member’s deployment
• taking qualified military caregiver leave

FMLA does not entitle an employee to unpaid leave for other reasons, including:

• caring for seriously-ill, elderly relatives other than parents, unless the relative was acting in loco parentis (“as a parent”) when the employee turned 18 (specific rules apply to making this determination)
• caring for a pet
• recovering from a short-term or common illness of the employee
• caring for a family member with a short-term or common illness
• receiving routine medical care

An employer may require certification from a health care provider to support leave for an employee’s own or family member’s serious illness, as well as periodic re-certification.

Leave Length & Notice Requirements

Eligible employees can take up to 12 weeks of unpaid leave during a 12-month period for any of the covered purposes. If spouses work for the same employer, the employer can limit the amount of combined leave for both spouses to 12 workweeks in a year.

The leave is unpaid, unless the employer decides to provide paid compensation or the employee elects to use accrued paid leave (annual and/or sick leave). Use of accrued paid leave must meet the requirements of the employer’s established leave policies. FMLA permits an employer to require the employee to use accrued paid leave time while taking FMLA leave. In those cases, accrued paid leave runs concurrently with — or is substituted for — the FMLA leave period.

A special provision applies to military caregivers, entitling them to take up to 26 workweeks of unpaid leave in a 12-month period, if the qualified military member is the worker’s spouse, child, parent, or next of kin and requires medical attention for acute or ongoing conditions.

Employees must comply with the employer’s normal requirements for requesting leave and provide enough information to enable the employer to determine whether the FMLA applies to the request. In general, the notice must be given 30 days in advance for a foreseeable need or as soon as possible and practicable under the circumstances.

Covered employers are required to post notices about FMLA rights and responsibilities, as well as include FMLA information in employee handbooks or provide FMLA information to new employees when they are hired.

Other FMLA Benefits

If all the qualifications are met, the FMLA provides specific protections for the employee — including job protection — in addition to the unpaid leave entitlement. The benefits include:

• continuation of group health benefits, including employer contributions, as if the employee were not on leave
• on return from leave, restoration to the same position or to a position substantially equal in pay, benefits, conditions, and responsibility (specific limitations apply to “highly compensated individuals”)
• reinstatement of all benefits the employee had prior to the leave
• protection from retaliation by the employer for using FMLA rights
• intermittent use of FMLA leave for the employee’s own or family member’s serious health condition, for example, occasional leave for medical appointments or treatment for a chronic condition, or temporary periods of incapacity

FMLA Enforcement

While some states have adopted laws that broaden or refine the federal statute, Kansas has not done so. Eligible employees in Kansas must rely on the protections of the federal law. If an employer violates the statute, the employee can bring an action in court.

If you have think your FMLA rights were violated or you have questions about your rights and benefits under the FMLA, contact the experienced Kansas employment law attorneys at Brady & Associates today.