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What is the Family and Medical Leave Act?

Updated on March 27, 2014
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I am not a lawyer, nor do I practice law. I am familiar with FMLA primarily from an employee's perspective through my previous positions, personal experience, and self study.

I have worked as a Family and Medical Leave Act (FMLA) Specialist and provided FMLA services to multiple businesses and organizations. Through my experience of dealing with employees, managers, and even CEO's, I want to make as clear as possible what the act was made for. Under its full name, the Family and Medical Leave Act of 1993 is federally mandated job and benefits protection for eligible individuals. FMLA is a federal law, and what is outlined must be followed by eligible companies and employees.

The Benefits of FMLA If You Qualify

The Family and Medical Leave Act allows you to keep your job and benefits, i.e. insurance, while on medically necessary leave.

  • You retain full benefits during your leave (DISCLAIMER: many companies require that you make your regular payments to maintain benefits). Some companies offer to deduct your insurance payments in a lump sum from your next check.
  • The total amount of time you are entitled to is 12 work weeks of leave. If you work 40 hours per week, this adds up to 480 protected hours. Because it is determined by "work week," the total amount of hours covered may differ if you work 45 scheduled hours per week or 30.
  • You must be reinstated to your same or equivalent position upon return to work.

Flight Attendants and Pilots

Because flight crew have varying schedules and different calculations for pay, FMLA has tried to balance this by only requiring 504 hours to be worked in the past year.

What Do I Need To Be Eligible for FMLA?

  • You must have worked at your job for at least one year
  • You must have worked at least 1250 hours in the last 12 months
  • Work at a location where at least 50 employees are employed or within 75 miles of such a location
  • You or a family member that you need to provide for must have a "serious health condition"

Have you been deployed and don't think you have enough hours?

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Three Examples of Eligibility

1. Jacob works as a cementer for a construction business. He's worked at his job for 7 years, but for the past two years he has been working part time while working at his parents' business, only managing 20 hours per week as a cementer. While on the job, Jacob breaks his collar bone from an accident. He is unable to work and must take leave. Is he eligible for FMLA?

No. Unfortunately, if Jacob has only worked 20 hours per week in the past 12 months, he has only accumulated 960 hours. Jacob is denied FMLA.

2. Felicia is an accountant at a small writing agency. She works 40 hours per week and has been doing so for 16 months. Her mother suffers a stroke, and she needs a caregiver. Felicia requests FMLA time so she may tend to her. Is she eligible?

Yes. She has worked for more than 12 months and has more than 1250 hours worked in the previous year. Felicia is entitled to 12 work weeks of leave, but she chooses to take 6 weeks.

3. Marie has been working as a nurse at a hospital for three months. She is due to deliver soon and her doctor orders her to bed rest. She must take off work for maternity leave. Is she eligible?

Yes. Sound wrong? Technically, Marie is not eligible for FMLA; she hasn't worked for 12 months nor does she have 1250 hours accumulated. However, the hospital she works for has a policy that FMLA for maternity leave is approved from the first day of hiring.

ALWAYS Speak With Your Human Resources.

In the above example, Jacob may be in a union with specific policies and may qualify for a protected leave. You should always explore your options. The Family and Medical Leave Act is a federal law that lays down a bare bones minimum for all states. However, companies and states may modify and extend the policies of FMLA. In the case of conflicting policies, whatever is more beneficial for the employee is followed. For example, Oregon offers an incredible family leave of their own.

How Much Does FMLA Pay?

Unfortunately, FMLA is unpaid leave.

Okay, It's Unpaid, So How Do I Get Paid From FMLA?

FMLA. Is. Unpaid.

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I Can't Go That Long Without Pay. What Can I do?

I understand it can sometimes be impossible to plan and save for illness, especially with any mounting medical bills. FMLA allows the employer the option of requiring employees on leave to use their vacation and paid time off (PTO) bank. Some business make this mandatory; others allow for the employee to choose.

A second option would be through short term disability. Short term disability can be through your state, job, spouse, or personally financed. Many people have this running concurrent with FMLA. FMLA protects your job and benefits while you're on leave, and short term disability pays you for a portion or equivalent of your income.

In general, short term disability doesn't offer job protection. However, you may often hear stories of people running out of FMLA and only having short term disability without repercussions. Typically most employers would be loathe to penalize anyone on short term disability, but this safety is not guaranteed. I recommend discussing this with your human resources department.

Proving The Serious Health Condition; Medical Certifications

If you are asked to prove a serious health condition, and you almost always will be, it is generally provided by your healthcare provider, such as a doctor, in the form of a medical certification. Determining a serious health condition is the responsibility of the doctor. Corporations and companies have to rely on an appropriate healthcare provider's medical opinion. The Department of Labor which oversees FMLA has provided a general government document to be used by healthcare professionals when certifying for FMLA. This form is recommended but not required.

  • If you are taking leave for your own serious health condition, you will find the form (WH-380-E) here.
  • If you are taking leave for your own serious health condition, you will find the form (WH-380-F) here.

Many corporations will give you this document as soon as you mention FMLA. However, if a doctor were to put all the necessary medical information on a napkin, that would be sufficient. The problem is that many doctors have never completed FMLA paperwork before and may not include all the needed criteria, which is why the forms are recommended. Your employer may have their own version of this document, so be sure to check with them before having this completed.

I cover medical certifications as well as a brief overview of FMLA and HIPAA law in this hub along with more in depth examples of completed paperwork. It is intended for doctors, so feel free to forward this to your healthcare provider as a starting point.

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Qualifying Exigency Leaves for Military Members and Family

A qualifying exigency leave is offered under FMLA for the military members themselves or family members. Of course you are able to take leave to care for a family member, and in some cases "next of kin," who has been injured in the line of duty, but you are also eligible for leave to be with a military member before deployment or basic training. The average length of time is 2 weeks prior to their departure. Proof of this is often given by providing a copy of orders.

Examples of Serious Health Conditions

  • Asthma
  • Pregnancy
  • Cancer
  • Flu (lasting 3 or more days)
  • Arthritis
  • Migraines
  • Mental health

Examples of medical conditions that are not considered serious by FMLA:

  • Flu (lasting 1-2 days)
  • Routine dental appointments
  • One time sicknesses such as headaches
  • Check-ups

Please remember that FMLA is still relatively young and many of its interpretations have yet to be tested and solidified. Areas that may need clarification include plastic surgery and certifications by chiropractors. If you're unsure of whether there will be an issue, check with your employer to see if it is acceptable.

Common Mistakes and Pitfalls of FMLA

In my time as an FMLA specialist, I have seen the same errors come up again and again. You can't always plan for everything, but if you keep these points in mind you will be much better prepared.

  • As soon as you think you might need to go on leave, contact your employer to let them know. The sooner your situation is recognized, the more time you have to get your leave approved and less issues.
  • It is your responsibility to ensure communication to your employer, your healthcare providers, and any third parties. Do not assume that anyone is taking care of anything for you. Most follow up can be achieved with a simple call.
  • It is your responsibility to ensure that any required paperwork is completed and returned to your employer.
  • Many companies have a deadline for completed paperwork, and this is outlined in the FMLA law. In general, it is a little over 2 weeks. Follow up with your doctor after 5-7 days once you've given them any paperwork to make sure it isn't being pushed aside or forgotten.

I can't emphasize communication enough. If you need to take more time off than originally anticipated, you will need to inform your employer and your doctor may need to note this extension on paperwork. Don't be afraid to ask questions!

References and Resources

Surprisingly hard to find, the full text of the Family and Medical Leave Act of 1993 in a legible form.

The Department of Labor also has various pages related to FMLA, regarding almost anything pertinent.

You can also see my article showing examples of completed FMLA paperwork here.


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