"Balancing Work and Family"
by: Gary Vikesland, MA LP CEAP
| The Family & Medical
Leave Act (FMLA) allows ”eligible” employees to take off up to
12 work weeks in any 12 month period for the birth or adoption of a child,
to care for a family member, or if the employee themselves has serious health
condition. An “eligible”
employee is an employee who has been employed by the employer for a least
12 months and worked at least 1,250 hours. The 12 months do not need to be
consecutive. You are only an “eligible” employee if your employer
employs 50 or more employees within 75 miles of the worksite. FMLA can be taken on
an intermittent basis allowing the employee to work on a less than full-time
schedule. The employee is entitled
to have their benefits maintained, but they must continue to pay their portion
during the leave. The employee also has the right to return to the same or
equivalent position, pay, and benefits at the conclusion of their leave. The eligible employee
must provide 30 day advance notice for foreseeable events. The employer is
allowed to ask the employee to obtain a certification from a medical provider
testifying to the need for the employee to take the leave for themselves
or for the family member. Upon completion of the leave the employer is allowed
to require the employee to obtain a certification of fitness to return to
work when the leave was due to the employee’s own health concerns. The
employer can delay the start of FMLA for 30 days if the employee does not
provide advance notice, and/or until the employee can provide certification
from a medical provider. If you and your spouse
both work for the same employer. You cannot each take 12 weeks off for the
birth of a child, when adopting a child, or to care for a parent with a serious
health condition. For additional information on FMLA go to: U.S. Department of Labor/FMLA |
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| The Family & Medical
Leave Act (FMLA) applies to your company if you employ over 50 employees
within 75 miles of the worksite, and at least 50 of your employees work 20
or more work-weeks in the current or preceding calendar year. If your company
is a public agency, you are subject to provide FMLA regardless of the number
of employees employed. All schools, private or public, are considered public
agencies. An “eligible”
employee allowed leave under the FMLA is an employee that has been employed
with your company for at least 1,250 hours during a 12 month period prior
to the start of the leave. The 12 months do not need to be consecutive months.
The burden is on the employer to show records that the employee has not worked
the required 1,250 hours. If the employer cannot show record of work hours,
the employee is eligible to use FMLA. (Full-time teachers are eligible for
FMLA even though they might not work 1,250 hours in a year.) An employer must give an employee requesting FMLA written notice, within two business days, if they are not eligible for FMLA. If the employer does not respond within two business days, the employee will be eligible to take the leave. A husband and wife who are employed with the same company are only entitled to a combined total of 12 weeks for the birth of a child, when adopting a child, or to care for a parent with a serious health condition. The employer is not
allowed to terminate FMLA if the employer falls below 50 employees for those
employees currently on leave. Once the leave has been granted or the employee
provides approval notice, the employer cannot alter the leave. The employee is required
to provide 30 days notice for foreseeable events that require FMLA. Foreseeable
events would include scheduled surgery, adoption, or birth of child. The
employer is allowed to delay the onset of FMLA without a 30 day notice. The employer can ask
the employee to provide a medical certification from a health care provider
that substantiates the need to use FMLA. FMLA can be delayed until the
certification has been received. In addition, the employer can ask for the
employee to provide a fitness-for-duty certification prior to returning to
work. The employee can ask
to use FMLA to care for a family member, for their own physical/mental health
care, and after the birth or adoption of a child. A spouse means a husband
or wife as defined or recognized under your State’s law. A parent is
either the biological parent or the person who acted as the parent when the
employee was a child. A son or daughter is either biological, adopted, under
foster care, a stepchild, a legal ward, or any child that the employee is
assuming parenting responsibility. The child must be under the age of 18
or over age 18 if a mental or physical handicap is present. The employer
is allowed to ask for documentation, i.e., birth certificate, court
documentation, or a medical providers certification. The eligible employee
is allowed to take 12 weeks of unpaid leave, unless they have paid sick leave,
in any 12 month period. The employee's leave can be taken on an intermittent
basis; for example, an employee may drop to part-time status until the equivalent
of 12 weeks has been obtained. During the 12 weeks of leave the employer
must continue the employee’s benefits the same as they would if they
were not on leave. The employee needs to pay his portion of his benefits
the same as if he/she were not on leave. After the 12 weeks have been used,
the employee must return to their same position or equivalent position, similar
benefits and working conditions, and same pay. An employer is allowed
to periodically ask the employee on leave to report their status and intentions
to return to work. If an employee informs the employer that they do not intend
to return to work, the employer may terminate the employment relationship
and thus end the employee's FMLA. If an employee fraudulently obtains FMLA,
he or she is not longer protected by FMLA in terms of job restoration and
benefit maintenance. Ordinary illnesses do
not qualify for FMLA; such as, common cold, flu, ear aches, upset stomach,
headaches, and routine dental care. Substance abuse is covered when the employee
is seeking treatment, and not just impaired by their usage. To be eligible
for FMLA an employee must have a condition that makes him or her unable to
perform their essential job function. Every employer covered
by FMLA must post and keep posted a notice outlining the Act’s provisions.
The posting must be in a conspicuous place whether or not the employer has
any current eligible employees.The above information covers a few highlights of the Family and Medical Leave Act. The above list is not meant to be inclusive. The FMLA literally has a provision for just about every conceivable contingency. For additional information see: U.S. Department of Labor/FMLA |
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