By: Kat Boogaard for The Muse, Photo by Alexander Dummer on Unsplash
You just found out that your dad has to have a double knee replacement. The doctors have already given him a heads up that the recovery is going to be long and brutal. And while your parents might be too proud to admit it, you know that they’re going to need help with even the most basic of tasks.
You’ve already decided that there’s no way you can balance those family obligations with the demands of your full-time job. You’re going to need an extended amount of time away from work to be there for your family.
So…what happens now? Do you have to quit your job? Throw yourself on the mercy of your employer? Tell your parents they can’t count on you and they’ll have to hire help?
This is where the Family and Medical Leave Act (FMLA) comes into play. Are you feeling cross-eyed and overwhelmed already? Don’t worry—we’re breaking down everything you need to know about this federal labor law:
- What Is FMLA?
- Who Is Eligible for FMLA?
- How Long Is FMLA Leave?
- Does FMLA Have to Be Taken Continuously, or Can I Split it Up?
- Is FMLA Leave Paid or Unpaid?
- What Does FMLA Cover?
- What Counts as a “Serious Health Condition” Under FMLA?
- What Makes FMLA Different From Short-Term Disability?
- Who Qualifies as a Family Member Under FMLA?
- How Much Notice Do I Have to Give When Requesting FMLA Leave?
- How Do I Request FMLA Leave?
- Do I Have to Give the Details of Why I’m Requesting FMLA Leave?
- Is Medical Certification Required to Take FMLA Leave?
- Will I Always Be Approved for FMLA Leave if I Meet the Requirements?
- Am I Required to Do Anything While Out on FMLA Leave?
- What Are My Rights When I Return to Work?
- Does That Mean Everything Will Be the Same When I Get Back?
- What Are My Options if I Think My Employer Has Violated FMLA?
What Is FMLA?
The Family Medical Leave Act is an employment law that was signed by President Bill Clinton in 1993 and allows employees to take job-protected, unpaid leave for specific family and medical reasons.
This is important, because most of us are considered at-will employees. That essentially means that we can be fired for virtually any reason (as long as it isn’t illegal)—without notice and without cause.
“It used to be that if you got sick or your family got sick or you had a baby and you couldn’t come into work, you could get fired,” explains Brian Heller, a partner at Schwartz Perry & Heller LLP, an employment law firm headquartered in New York City.
That doesn’t sound too fair, right? That’s exactly why FMLA was enacted—so that people could take unpaid leave to care for themselves or their families without worrying about their own job security. “It’s an important shift to culturally recognize that people have lives outside of work,” Heller adds.
Who Is Eligible for FMLA?
You might think that since this is a federal law, FMLA leave is a right that’s granted to everyone. However, there are some criteria that need to be met for FMLA eligibility.
In order to take this unpaid leave, you must:
- Have been employed with your company for at least 12 months
- Have worked at least 1,250 hours during the 12 months (that’s about 104 hours per month, or a little over 24 hours per week) prior to the start of FMLA leave
- Work for an employer that has 50 or more employees within a 75-mile radius of your worksite
That means if you work for a small marketing agency with only 10 employees, your employer isn’t legally required to give you this unpaid time off (although they can still choose to do so).
Additionally, there are some exceptions to these eligibility rules for military members and airline employees.
How Long Is FMLA Leave?
Employees who meet the eligibility requirements above can take up to 12 weeks of unpaid FMLA leave in a 12-month period.
Does FMLA Have to Be Taken Continuously, or Can I Split it Up?
Did your eyes go wide at the mention of 12 weeks off? Yes, that’s a long time. But there’s more: Your FMLA leave doesn’t need to be taken continuously in one stretch. There are numerous different structures for leave, including:
Intermittent FMLA Leave: This offers more flexibility with your time off. For example, if you know you’re going to need to attend regular doctor appointments for yourself or with a loved one, this allows you to leave work to do so. Any hours or days you take off will be counted toward the 12-week total.
Reduced Schedule FMLA Leave: This type of leave allows you to decrease the amount of hours you work during any given day or week. Again, any time off is subtracted from the 12-week total.
“I went on FMLA so I could adjust my shifts and schedule,” explains Denise, who requested not to use her full name in order to protect the identity of her previous employer. She used FMLA leave from her position at a large tech company to care for her mother, who had a worsening case of Alzheimer’s disease.
“I wasn’t totally out of work,” she explains. “As things would come up for my mom, I would incorporate FMLA and say, ‘I can’t come in this day,’ or, ‘I’m going to be late,’ or, ‘I have to leave early.’”
Is FMLA Leave Paid or Unpaid?
While FMLA does guarantee you time off from your job (as long as you meet the FMLA requirements listed above, of course), it doesn’t offer any sort of compensation or income replacement. This time off is not paid family leave—it’s completely unpaid.
However, your company may choose to offer other types of paid leave as well. In those cases, you can elect to apply (or your employer can require you to apply) some of your accrued paid leave (whether it’s paid sick days, vacation time, or family leave) to your FMLA period and have it covered under FMLA protections.
So, for example, if you were going to take FMLA leave for 12 weeks to deliver and care for a new baby, you could apply your accrued one week of sick leave and one week of paid vacation, and then use FMLA to cover the remaining 10 weeks of unpaid leave. When doing so, all of your time off (including the paid days) would offer you the same job protection and rights that FMLA provides.
What Does FMLA Cover?
FMLA is often talked about in the context of needing to care for a family member. However, it doesn’t only cover your loved ones—it applies to illnesses or injuries you experience personally, as well as maternity leave.
According to the U.S. Department of Labor, FMLA allows eligible employees to take leave for any of the following reasons:
- Birth and care of a newborn child
- Placement of an adoptive or foster child
- Care for an immediate family member (a spouse, child, or parent) who has a serious health condition
- A serious health condition
What Counts as a “Serious Health Condition” Under FMLA?
Look back at that section above, and you’ll see the phrase “serious health condition” used twice. But what exactly does that mean?
Fortunately, what counts as a serious health condition is pretty clearly outlined by the Department of Labor, which states that the most common serious health conditions that qualify for FMLA leave are:
- Conditions that require an overnight stay in a hospital or other medical care facility
- Conditions that incapacitate you or your family member for more than three consecutive days and require ongoing treatment
- Chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year
- Pregnancy (which includes prenatal appointments, incapacity due to morning sickness, and bed rest that’s medically necessary)
That means things like surgeries, cancer and other diseases, and even some mental health issues qualify for FMLA. Your case of the sniffles? Not so much.
What Makes FMLA Different From Short-Term Disability?
Perhaps you’re also fortunate enough to have a short-term disability benefit that covers very similar personal illnesses or injuries. If that’s the case, what’s the difference between FMLA and short-term disability?
There are two big ones you should be aware of:
- Short-term disability leave offers some income replacement, while FMLA is totally unpaid.
- Short-term disability is a private policy (meaning employers aren’t required to offer it), while FMLA is a federal regulation that all qualifying employers must provide.
Of course, there are different eligibility requirements and other things in the fine print that separate the two. You’ll need to consult your own short-term disability benefit paperwork (I know, that’s tons of fun) to get all of the details if you need them.
Who Qualifies as a Family Member Under FMLA?
No two families look the same, so it’s normal to wonder exactly who counts as your family member under this federal law.
The Department of Labor states that qualifying family members include a child, spouse, or parent.
This law doesn’t only recognize biological children—FMLA also applies to a child who is adopted, a foster child, stepchild, a legal ward, or a child of a person acting in loco parentis (which is basically a fancy term of someone who is standing in the place of a parent).
Now that same-sex marriages are legally recognized, the definition of who qualifies as a spouse under FMLA has expanded too. In early 2015, the Department of Labor issued a final rule to ensure that legally married same-sex couples are granted the same status under this federal law. This rule also extended to common-law marriages.
You’ll notice one close family member left off this list: siblings. As strange as it might seem, needing to take time off to care for a brother or sister isn’t covered by FMLA.
How Much Notice Do I Have to Give When Requesting FMLA Leave?
In cases where the FMLA leave is predictable (for example, your spouse has a scheduled surgery coming up), employees must give at least 30 days notice.
Of course, that’s not always possible—emergencies and unforeseen circumstances happen. In those situations when you need to request FMLA leave immediately, be aware that you might be asked to explain why you were unable to provide adequate notice.
How Do I Request FMLA Leave?
Figuring out exactly how to use FMLA is probably one of the most confusing and intimidating parts of the process. If you have an HR department, that’s the best place to start. They should be able to walk you through what’s needed. If your employer doesn’t have an HR department, approach your manager to find out how you can exercise your FMLA rights.
For example, Denise was provided a link to download and fill out the FMLA forms her company required, which were surprisingly specific.
“It would ask, ‘What do you need to do for your parent? How many times per week do you think they’ll have doctor appointments? On a scale of one to 10, how bad is it?’” she remembers.
After completing the paperwork, she had to clear everything with her mother’s doctor and then submit those forms to her employer for approval.
Starting this sort of conversation with your employer can be sort of nerve-wracking. But rest assured that you don’t need to march into that office pounding your fists and asserting your rights.
If this is your first time taking this type of leave, the Department of Labor says that you don’t need to explicitly mention FMLA at all (your employer should know and share with you that this is an option). However, if you’re requesting leave for something that you’ve already taken FMLA leave for previously, then you do need to specifically reference the qualifying reason.
Do I Have to Give the Details of Why I’m Requesting FMLA Leave?
As the detailed questions alluded to above indicate, yes, you’ll need to provide some details of the situation you’re in.
This isn’t a case of your employer trying to be nosy and poke into your personal life. Instead, they just need to get enough information in order to determine whether your situation is actually covered by the Family Medical Leave Act.
Once you make your leave request, your employer must let you know whether or not you’re eligible for FMLA leave within five days.
Is Medical Certification Required to Take FMLA Leave?
This is one question that doesn’t have a clear cut answer—exactly what’s required of you is dependent on your employer. Some request medical certification, while others take you at your word.
At the same time your employer confirms that you’re eligible for FMLA leave, they should also let you know whether or not you’ll be required to provide medical certification from a health care provider.
If your employer does make this request, you have 15 calendar days to provide the necessary documents. Unfortunately, if you fail to do so, your FMLA leave could be denied.
Will I Always Be Approved for FMLA Leave if I Meet the Requirements?
Short answer: You should be.
If you work for a covered employer (meaning it has more than 50 employees within a 75-mile radius), you satisfy the eligibility requirements (you’ve worked there for over 12 months and have worked at least 1,250 hours during that time), and your situation meets the definitions outlined above, then you legally can’t be denied FMLA leave.
However, wrongful denials do still happen. See the below section on what to do if you believe your employer has violated your FMLA rights to find out the best way forward.
Am I Required to Do Anything While Out on FMLA Leave?
If you take this unpaid time off, are you required or expected to do anything while you’re out? Should you be checking your emails or providing frequent status updates?
There’s no requirement that you stay in touch about work matters while taking FMLA leave. “It’s intended to give people the time they need to be with their family members, so there’s no requirement that employees check in, but there’s also no prohibition against employers or employees checking in if that’s what they prefer,” explains Heller.
What Are My Rights When I Return to Work?
FMLA leave offers job protection, which means when you return you must be reinstated into the same position you held—or at least one that’s equivalent in terms of duties, status, skill, authority, pay, benefits, and work schedule. However, be forewarned that this area can be murky at best and there are exceptions.
“This doesn’t mean that your job has to stay the same if the company makes business decisions,” says Heller. “If the company wants to change things around, they’re allowed to do so while you’re on FMLA leave.”
So, for example, imagine that you were responsible for managing one large account prior to your leave. If that account doesn’t renew their contract while you’re out and everyone assigned to it gets laid off, you won’t be able to come back to your job—because there’s no job to come back to. (As in, you can still get laid off while on FMLA, as long it’s not because you took the leave.)
“The difficulty with FMLA and people taking this type of leave is that companies like to move forward and they don’t like to accommodate people who want to be out because it inhibits their ability to get things done,” Heller adds.
Does That Mean Everything Will Be the Same When I Get Back?
Despite the fact that you’re entitled to a similar job, taking FMLA leave doesn’t mean that you’ll swoop back into the office in a time machine and everything will be just as you left it.
There are a lot of changes that can happen while you’re away from the office, and unfortunately, your absence can stir up a lot of resentment and other emotions from your supervisor and team members as well.
Legally, your employer can’t retaliate against you for taking this leave—but, as Denise experienced, that doesn’t mean it doesn’t happen.
“Even though I was on FMLA leave and I was approved, my work still didn’t like it,” she explains. “Needing to frequently adjust my hours was translated into me not being a team player, so things got tense. Some managers stopped talking to me and there were a lot of questions like, ‘Why can’t you be here?’ and I’d repeat a million times that I was on FMLA.”
She explains that she even got poor marks on her performance review for her perceived “inflexible schedule,” before she decided to open an investigation with her HR department. While they ruled in her favor and her performance ratings were eventually changed, she explains that the resentment continued—eventually causing her to leave that job altogether.
That sort of experience is (hopefully!) more the exception than the rule, but it does serve as a reminder that these laws for employees aren’t all checkboxes and black and white legal language. There are human elements at play that can introduce some interesting dynamics and unexpected complications.
What Are My Options if I Think My Employer Has Violated FMLA?
Let’s say that you find yourself in the unfortunate situation where you’re convinced that your employer has violated your FMLA rights. Maybe you believe your leave was unjustly denied or you returned to work and were put into an obviously inferior position to the one you left.
Now what? What’s your best course of action?
Heller advises that playing nice and rolling over won’t do any good—it’s up to you to assert your rights. “You have to stand up for yourself and go to your HR department,” he says. “If you’re genuinely concerned, speak to an employment attorney. Maybe you don’t even have a claim, but it’s helpful to know.”
In short, don’t stay quiet. Make your issue known to your HR department (or, if you don’t have one, whoever you worked with to file for your FMLA leave). As with anything, you can’t expect your employer to read your mind.
Needing to take FMLA leave isn’t the most thrilling topic to think about. If there’s only one thing you take away from all of this information, make it this: As long as you meet all of the requirements, this is something that you’re entitled to—so don’t be shy to ask for it if you need it.
“This isn’t something that the company is offering to you as a benefit,” concludes Heller. “This is your right.”
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