The Family Medical Leave Act

The Family and Medical Leave Act (“FMLA”) entitles employees to take time off from work for a total of up to 12-weeks due to family or medical emergencies, but only for specified reasons.

Not every reason qualifies for FMLA protection while on time off (defined as an overnight stay in a hospital, hospice or residential medical care facility; any overnight admission to such facilities is an automatic trigger for FMLA eligibility). Generally, the types of events that trigger FMLA protections include:

• The arrival of a new child in the family — whether by birth, adoption or foster care
• The care of a family member with a serious health condition
• The employee’s own serious health condition that prevents the employee from performing the essential job duties

As defined under FMLA, a “serious health condition” means any illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. Additionally, for determining what qualifies for FMLA-related leave, the regulations only include an employee’s spouse, child, or parent as family members.

Below is a summary and descriptions of reasons that qualify for FMLA leave under current FMLA regulations.

Parental Leave after the Birth of a Child

The birth of a child qualifies for FMLA leave, and a mother may use FMLA time off for prenatal care or continuing care once the child is born. A father may also use FMLA leave to care for a newborn child, or to provide care for his incapacitated spouse due to the pregnancy or child birth. Parental leave does not have to run concurrently. Upon an employer’s approval, parents may choose to spread their 12-week leave out over the course of a year by taking a few weeks at a time or by reducing their normal work hours in a given week (known as “intermittent parental leave”.)  However, when both parents are employed with the same company, only one parent may qualify for pregnancy or child-birth related leave.

Pregnancy Leave

Sometimes the pregnancy itself may qualify for FMLA as a serious health condition, especially when a doctor places the employee on bed rest during any point within a pregnancy. Employees who request pregnancy-related leave may be required to verify the pregnancy-related complication through medical certification.

Adoption or Foster Care

The placement of a child for adoption or foster care is a qualifying reason under the FMLA. Employees may take up to a 12-week leave up to one year after a child is placed through adoption or foster care with an employee. Adoption leave may also occur before the actual placement or adoption of a child if an employee’s absence from work is required before the placement of the child — such as to attend counseling sessions, appear in court, or travel to another country to complete the adoption.  The source of the adopted child is typically not a factor in determining whether the adoption qualifies for FMLA.

Medical Leave to Care for a Family Member with a Serious Health Condition

Employees may request leave to care for a family member with a serious health condition. Under current FMLA regulations, only spouses, children, or parents are considered family members. An employee’s in-laws or grandparents, for example, are not included. Moreover, for purposes of FMLA, ordinary illnesses such as the common cold, flu, earaches, upset stomachs and headaches do not qualify for FMLA – although some common illnesses that a doctor deems serious due to a prolong illness, for example, may qualify for FMLA under certain circumstances.

Medical Leave for Your Own Serious Health Condition

Often an employee’s own health condition may qualify for FMLA. For example, employees who are unable to perform their essential job duties because of a serious illness or chronic health condition may request leave to treat the condition or receive prolonged care while under a doctor’s supervision. Furthermore, FMLA regulations require a “period of incapacity” of more than three consecutive calendar days. If an employee’s condition requires two or more visits to a health care provider for the same condition, those visits must occur within 30 days of the first day the employee became incapacitated. Finally, under FMLA regulations, the treatment of a chronic health condition must occur at least twice in any calendar year, and employees may also be required to show medical certification of his or her illness.

Military Family Member Leave

Care of a family member who was injured while on active duty in the military may qualify for FMLA. Employees may also request to handle certain matters arising out of a family member’s deployment during FMLA leave.

Once you have determined that you qualify for FMLA based on any of the above-listed reasons, you must also have general FMLA eligibility before leave is actually approved. This may include having worked for your employer for at least 12-months and submitting FMLA notice requirements.