Family and Medical Leave

To help women and men balance work and family obligations, state and federal laws in the United States now give many employees the right to take up to twelve weeks of leave from work for the birth or adoption of a child and to care for a child, spouse, or an employee's own serious medical condition. Employers are required to allow employees who take leave to return to their jobs. The leave is unpaid, though an employer must continue to provide health benefits for employees during leave. Some states have their own laws affording these rights, but the main source of job protection comes from the federal Family and Medical Leave Act of 1993.

The Family and Medical Leave Act of 1993

The U.S. Department of Labor administers the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601. The law requires that covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

• for the birth and care of the newborn child of the employee;
• for placement with the employee of a son or daughter for adoption or foster care;
• to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
• to take medical leave when the employee is unable to work because of a serious health condition.

The law also prohibits an employer from interfering with any rights granted under the law, as well as firing or discriminating against an employee for taking leave under the Act. Employees who feel their employers have acted in violation of the FMLA can file charges with the U.S. Department of Labor's Wage and Hour Division.

What is a serious health condition?

Under the FMLA, employees can take time off from work if they have a serious health condition or they have to care for an immediate family member with a serious health condition. Courts have arrived at different interpretations on what qualifies as a serious health condition, though the general intent of the law is to provide job protection for employees who need to take time off from work for serious, continuing medical problems, either their own or that of a family member.

The FMLA defines a serious health condition as an "illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." Department of Labor Regulations implementing the FMLA further mandate that the illness or injury incapacitate an employee or family member for more than three consecutive days, with at least two visits to a medical provider, or require one visit to the health care provider that results in a course of therapy or treatment over time.

What employers does FMLA apply to?

A "covered employer" that must comply with the FMLA includes private employers with 50 or more employees, within 75 miles. State and local government employers are covered by the FMLA regardless of the number of employees.

What employees are eligible for FMLA job protection?

An employee may take family or medical leave under the Act if he or she is the employee of a covered employer who has worked for that employer for at least 12 months. The employee does not need to have worked for the employer continuously for those 12 months, but must have worked for at least 1,250 hours during the 12-month period immediately before the leave begins.

How does it work?

FMLA requires that an employee provide the employer with at least 30 days advance notice before taking FMLA leave, if the employee knows he or she will need time off for an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or of a family member. If the need for leave is not something an employee could foresee, such as for a medical emergency, then he or she is required to provide notice to the employer as soon as is practicable.

An employee may take up to 12 weeks of leave, which, in some circumstances, may be taken intermittently, such as one week or one day at a time. When an employee returns to work from FMLA leave, the law requires that he or she be returned to the same position or to an "equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment."

An employee who takes FMLA leave is entitled to maintain health benefits provided by his or her employer, though the employee will have to continue to pay his or her share of the premiums. The employee may pay for the coverage while on leave or choose to pay upon returning to work.

State family and medical leave protections

Statutes similar to the federal FMLA have been enacted by 11 states—California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin—and the District of Columbia. States also have separate laws regulating family and medical leave available to employees of state, county, and other governmental agencies.

Some state laws afford employees greater protections than does the FMLA, and covered employers must comply with the federal or state provision that provides the greater benefit to their employees. The U.S. Department of Labor does not enforce state family and medical leave laws, and states do not enforce FMLA.