The federally mandated Family Medical Leave Act allows working employees to take unpaid leave from work, with their job and benefits remaining protected upon their return. Employees who are eligible for FMLA leave may take up to 12 weeks of leave in one year. There are six defined categories that fall under FMLA coverage for eligibility, under which your employer must ensure a job at the same level you had before your leave and with the same benefits and insurance when you return.
The Birth of a Child
12 weeks of leave (formerly referred to as maternity or paternity leave) is guaranteed for employees who qualify for FMLA. This leave is to allow parents to be present for their child’s birth as well as to be home during their baby’s first few months of life to bond as a family.
This leave may be taken up to 12 months from the child’s date of birth. Some families opt to take this leave in shifts with one parent home for the first 12 weeks, followed by the second parent home from weeks 12-24. In most cases, this leave must be taken as a continuous block of time unless otherwise agreed upon with the employer as they see fit.
Adoption or Foster Care Placement
Similar to the leave after the birth of a child, any eligible employee may take up to 12 weeks of continuous leave to care for and bond with a new child in their home after adoption or placement within the foster care system. If necessary, the leave may begin before the official adoption or placement date to allow employees to attend necessary court dates, meetings or travel as the process requires.
This leave expires 12 months after the placement or adoption date, and must be taken in one block of time unless the employer and employee agree to other arrangements.
An Employee’s Serious Health Condition
If an employee is too ill, injured, or otherwise medically unable to perform their job functions, that employee is entitled to 12 weeks of FMLA leave to recuperate. Likewise, if an employee is undergoing medical treatment requiring absences from work, they are considered unable to perform the necessary functions of their job, so are awarded FMLA leave.
Caring for an Employee’s Spouse’s, Child’s, or Parent’s Serious Health Condition
If an employee is needed to help care for their immediate family member suffering from a serious health condition, they are allotted up to 12 weeks of leave to do so. Necessary care for a family member is defined by a situation where the family member is unable to care for his or her own needs without assistance, or to provide comfort and reassurance to the family member who is suffering from a serious medical condition.
Legally, to qualify for FMLA terms, an immediate family member is classified as one of the following:
A husband or wife as defined or recognized within your state including traditional marriage, same-sex marriage, or common law marriage.
Son or Daughter
In order to take FMLA leave to care for a child, that child must be your biological son or daughter, an adopted or foster child, a stepchild, a child over whom you have legal guardianship, or a child of a person in loco parentis. This child must be under age 18, or be 18 or older and “incapable of self-care because of a mental or physical disability” at the time of the start of FMLA leave.
An employee may take FMLA leave to care for his or her mother or father, whether biological, adoptive, step or foster. An employee may care for someone who stood in loco parentis for him or her as a child, but may NOT use FMLA leave to care for a parent in-law.
In Loco Parentis
“In loco parentis” is defined as a person who fulfilled the care or financial duties of a parent, even though they had no biological or legal connection to the child. Under FMLA terms, an employee who is standing in loco parentis may use FMLA leave to care for a child, or may use FMLA leave to care for a parent who stood in loco parentis for them as a child.
Military Deployment of an Employee’s Spouse, Child or Parent
Certain situations qualify under FMLA rules to allow an employee to take leave in the event of their family member’s overseas deployment. In most cases, this allows an employee to use their 12 weeks of leave to fill in necessary child care duties that were left vacant by a spouse’s or parent’s deployment. Likewise, FMLA leave can be used to visit a family member in the military who is on R&R leave during deployment, to attend necessary financial or legal meetings that arise due to deployment or other qualifying exigencies.
Military Caregiver Leave
An employee may take up to 26 weeks of FMLA leave in one year to care for a covered service member with a serious illness or injury. The employee must be the spouse, child, parent or next of kin of the injured service member to qualify for this leave.
What Qualifies as a “Serious Health Condition?”
In order to provide clarity for FMLA leave, a serious health condition is the term that encompasses inpatient care, incapacity for more than 3 days with continued treatment by a healthcare provider, incapacity related to pregnancy or prenatal care, chronic serious health conditions, permanent or long-term incapacity, and certain conditions requiring multiple medical treatments.
is any condition requiring an overnight stay at a hospital or other care facility. If an employee or his or her child or parent requires inpatient care, they are eligible to take FMLA leave for the duration of the inpatient care as well as the time of incapacity or treatment following that inpatient care.
Incapacity for More Than 3 Days
with continuing treatment is covered by FMLA as a serious health condition. If someone misses work for an illness or injury for more than three days (even if not consecutively), they are eligible for FMLA leave. In addition, their leave can be used to cover any continuing treatment related to their illness or injury. This treatment usually refers to at least two treatments by a healthcare provider within 30 days of the start of the illness, or one treatment accompanied by a regimen of continued treatment that begins within 7 days of onset of the condition.
Pregnancy or Prenatal Care
includes incapacity due to morning sickness, fatigue, or prenatal checkups and exams. This leave is covered even if it is less than three days and the employee need not see a doctor during this time.
Chronic Serious Health Conditions
are covered by FMLA leave if the same condition requires periodic treatments or doctor visits (defined as at least two per year), if the condition continues for an extended period of time, or if the incapacity comes and goes sporadically instead of continually. Typically, this category of FMLA leave is used for cases of asthma, diabetes, epilepsy, or other known conditions that result in episodic incapacity.
Permanent or Long-Term Incapacity
allows an employee to take leave for continuing incapacity when treatments have not worked or may not be effective enough to allow the employee to return to work. Examples of long-term incapacity include stroke, terminal cancer or other diseases and Alzheimer’s.
Conditions Requiring Multiple Treatments
include cancer diagnoses that require chemotherapy, reconstructive surgery after severe accidents or rehabilitation after surgery or injury. These treatments are covered under FMLA leave if they prevent an outcome that would result in more than three consecutive days of incapacity if they were left untreated.
FMLA Leave is Protected Under Employment Laws
If you or an immediate family member has suffered an illness, injury or other situation requiring you to take FMLA leave, but your employer is not cooperating, you may have a legal claim to get the leave you need. Contact an experienced FMLA attorney who can help you better understand your rights under FMLA law.