The Family and Medical Leave Act
Most working people wear many hats. At work, they are employees. They also may be parents, spouses, and children. Their family relationships may also come with duties and responsibilities. They have children who need care. They have husbands and wives who need help. They may have elderly parents who depend on them. Sometimes, working people may need to care for themselves. It can be a real problem when a working person can't go to work. This may be because the working person needs to stay home to take care of a child, a spouse or a parent. Or, it may be because the working person is ill and needs medical treatment.
Every working person should know about the Family and Medical Leave Act, or FMLA. FMLA is a law that says that in certain situations, an employer may have to give an employee time off for certain reasons, such as when they are sick, or when they have family members who need care. FMLA is a federal law, which mean it applies in all fifty states and anywhere else US law must be followed, like the District of Columbia or Puerto Rico. It is important to remember, however, that FMLA does not apply to every employer, to every worker, or to every situation.
Does The FMLA Apply To Your Employer?
The most common mistake people make about FMLA is thinking that it applies to every employer. It doesn't. FMLA only applies to "covered" employers. All federal, state and local government agencies are covered employers, regardless of how many people they employ. Not all private companies are covered employers. A private company is only a covered employer if it employed a total of fifty or more workers for at least twenty weeks during the present calendar year or the previous calendar year. That means that private employers who employ less than 50 employees are not required to provide FMLA leave to its employees. If you work for a private contractor who has ten or twenty people on the payroll, your employer is not covered by FMLA.
Am I Eligible To Take FMLA Leave?
Even if your employer is covered, you may not be eligible to take FMLA leave. To be eligible to take FMLA you must meet all of the following requirements:
- work for a covered employer;
- have worked for that covered employer for at least twelve months (Your 12 months of employment do not have to be consecutive. For example, if you have worked for your current employer for 7 months straight, but you had worked for that same employer before for 8 months on a previous occasion, you meet the 12 month employment requirement);
- have worked at least 1,250 hours over the previous twelve months This is actual hours worked and does not include vacation, sick leave or anytime that you did no actual work even if you were receiving pay); and
- work at a location where your employer has at least fifty workers within seventy-five miles. This location also must be a place where US law applies, like a US state or territory.
How Much Leave Can I Take Under The FMLA?
If your employer is covered and you are eligible for FMLA leave, you are entitled to twelve weeks of unpaid leave in a twelve month period. Your employer gets to decide how they will calculate the 12 month period so make sure you find out how they will be doing that calculation. For example, it may be calculated based on a calendar year or may be calculated based on when you first take FMLA leave.
You are entitled to FMLA leave if any of the following things happen:
- you have a baby;
- you adopt a child or take in a foster child;
- you have to care for a child, spouse or parent with a serious health condition; or
- you cannot come to work because of a serious health condition.
How can you tell if something is a "serious health condition?" Well, any medical problem that requires inpatient care is a serious health condition. "Inpatient care" is where a person is admitted to a hospital or other care facility, and stays there one or more nights.
The opposite of inpatient care is "outpatient care." Outpatient care is where you go to a doctor's office or other facility, get treatment, and go back home. A health problem that requires only outpatient care may still be a serious health condition if it makes the person who has it unable to go to school or work, or to perform other daily activities. In addition, one of the following things must be true:
- the health problem makes the individual unable to perform his/her normal daily activities for more than three consecutive days and the individual gets treatment two or more times by a health care provider, or needs treatment once followed by a continuing regimen (things that have to be done regularly, such as taking prescription medication or attending physical therapy);
- the person needs prenatal care, or care related to pregnancy;
- the problem is a chronic (long-term) one, and the person who has it has to visit a health care provider from time to time. The health problem also sometimes keeps the person who has it from being able to do everyday things. Examples of a health problem like this would be asthma, migraines, severe depression, or diabetes;
- the health problem is a permanent or long-term problem that may not have any effective treatment, like Alzheimer's or a stroke; or
the health problem requires a series of treatments (like chemotherapy for cancer).
FMLA talks about "health care providers" rather than "doctors." A health care provider can be a doctor, but doesn't have to be. A health care provider could also be a number of different medical persons, such as a dentist, psychologist, chiropractor (but only in very limited situations), nurse practitioner, licensed social worker, or midwife, but not a physician's assistant.
FMLA guarantees you more than just twelve weeks of unpaid leave. During your leave, your employer must continue any health insurance coverage you were getting before your leave started. When your leave is over, your employer must give you back your old job, or give you another job with the same pay, benefits, and conditions. Your employer is not allowed to stop you from exercising your rights under FMLA. Your employer may not discriminate against you (treat you differently) because you exercise your rights under FMLA. Your employer also must post information about your rights under FMLA in a location where employee can see the poster. If your employer provides you with an employee handbook, they may have included a policy explaining your rights and obligations if you need FMLA leave.
What You Have To Do
The most important thing you can do before you ever need FMLA leave is to learn about your rights and obligations under the FMLA. Read the FMLA poster that your employer is required to have posted at the worksite. Check your employee handbook or other employer policies to learn if there is a FMLA policy. Review that policy and follow it if and when you ever need leave under the FMLA.
The most important thing you have to do when you need FMLA leave is tell your employer that you need FMLA leave. You must tell your employer of your need for leave thirty days in advance, if it is possible to do so. If not, you should tell your employer you need FMLA leave within a day or two of whenever you find out you need it. You should do this in writing. Make sure you tell your employer that you are asking for leave under the Family and Medical Leave Act. You don't have to do this, but it is a good idea. As always, keep a copy of anything you give to your employer.
You also have to give your employer written evidence of your need for leave, if he or she asks for it. This evidence might be a copy of a birth certificate showing that you have had a baby, or a copy of an adoption decree or foster child placement order. Or it might be a letter from a health care provider explaining who is sick, what they have, and why they need help from you. Your employer may require that you provide this medical information in a specific form, called a medical certificate. You need to provide the requested supporting information in a timely manner or your FMLA leave may be delayed until you do provide the information. Your employer can even require you (or whoever is sick) to be examined by another health care provider. Your employer will have to pay for this.
Finally, your employer can require you to make periodic reports describing your situation and saying when you think you might be able to return to work.
In certain situations, you may ask or your employer may require you to take "intermittent leave." This is leave that is taken in blocks of time. You might have to work every day but only for part of the day, or all day but only on certain days of the week. Also, in certain situations, your employer may be able to require you to use paid leave that you have built up (like paid sick leave or paid vacation leave) to cover some or all of your FMLA leave period.
Enforcing Your Rights
If you think your rights under FMLA have been violated, you may do one of two things. You may file a complaint with the US Department of Labor. The department will investigate your complaint. After they investigate, they may decide to file a lawsuit against your employer. The department does not have to do this, however.
If you don't want to file a complaint with the Department of Labor, or the department investigates and says they're not going to do anything more, you may file a lawsuit of your own. You may file your lawsuit in federal or state court. You may ask the court for money damages. You also may ask the court to order the employer to do something, like give you your job back. You may even ask the court to make your employer pay your attorney's bill.
Whether you are going to file a complaint with the Department of Labor or file your own lawsuit, you must do it within two years of whenever you think your rights were violated. The law says you get an extra year to file your complaint or lawsuit if your employer "wilfully" (deliberately or on purpose) violated your rights, but don't wait that long.
- Iowa Legal Aid provides help to low-income Iowans.
- To apply for help from Iowa Legal Aid:call 800-532-1275.
- Iowans age 60 and over, call 800-992-8161 or
- apply online at iowalegalaid.org
If Iowa Legal Aid cannot help, look for an attorney on “Find A Lawyer” on the Iowa State Bar Association website iowabar.org. A private attorney there can talk with you for a fee of $25 for 30 minutes of legal advice.
*As you read this information, remember this article is not a substitute for legal advice.