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Family and Medical Leave Act (FMLA)

Jacques Chambers, CLU, Benefits Consultant

In addition to the American with Disabilities Act (ADA) (discussed in last month’s article), there is another federal law that has an impact on benefits provided by employers. It is the Family and Medical Leave Act (FMLA) which was signed into law by President Clinton in 1993. The goal of the law was to provide some job protection for persons who needed to take time off because of a serious illness—either the worker’s or a member of the worker’s family.

As with the ADA, it is important to know not only what the FMLA does, but also what it does not do. The law primarily does only two things. If you are an employee that has to take time off from work due to a serious medical condition, either your own or that of a family member, the law:

1. Protects your job while you are off work caring for either yourself or a family member with a serious medical condition so that your job will be available when you can return to it; and,
2. Requires employers to continue your employee benefits in the same manner as it did when you were working.

The law only provides its protection for the first twelve weeks of absence in a 12 month period.

The law does not require employers to continue any part of the worker’s salary while you are not working. Any income would have to come from another source, such as the employer’s sick leave and/or Short Term Disability plan, or Worker’s Compensation if it’s a job related condition, or by state law in states with a mandated disability program, California, Hawaii, New Jersey, New York, or Rhode Island.

To review the main provisions of the Family and Medical Leave Act (FMLA):

Who is covered under the law?
Employers covered by the law are those employers engaged in commerce or an industry or activity affecting commerce if 50 of more employees are employed in at least 20 or more calendar workweeks in the current or preceding calendar year. The right to take leave applies equally to male and female workers who are employed at or within 75 miles of the work place by an employer of 50 or more workers.

The FMLA also applies to all public agencies, state governments and political subdivisions (including the District of Columbia, U.S. territories and possessions), elementary and secondary school systems, and institutions of higher education.

Who can take advantage under the law?
An employee is eligible to take FMLA leave if:
1. The employee has been employed by the employer for at least 12 months, not necessarily consecutive.
2. The employee has been employed for at least 1,250 hours of service during the 12-month period immediately preceding commencement of the leave.
3. The employee is employed at a work site where 50 or more employees are employed by the employer within 75 miles of that work site.
4. The employee is not a “key” employee.
5. The employee’s position has not been scheduled for elimination.

For what reason may an employee take time off under the law?
The FMLA requires covered employers to grant eligible employees up to 12 weeks of unpaid, job-protected leave in any 12-month period to care for family members or because of their own illnesses. Many states have similar leave laws. FMLA leave may be granted for the following reasons:
• The birth of the employee’s child and care of the infant;
• The placement of a child with the employee for adoption or foster care;
• The care of a spouse, child, or parent of the employee if the spouse, child, or parent has a serious health condition; or
• The employee’s own serious health condition renders him or her unable to perform the essential functions of the job.

A non-chronic, short-term illness or injury that requires an employee to be absent from work a day or two at a time may qualify as part of the employee’s entitlement to job-protected leave under the FMLA as long as the illness or injury is a serious health condition.

What is a “serious health condition” under the law?
The law defines “serious health condition” to include any “illness, injury, impairment, or physical or mental condition that involves” either inpatient care or “continuing treatment” by a “health care provider.” The Department of Labor regulations expand this to include an illness, injury, impairment or physical or mental condition that involves: (1) inpatient care, including any period of incapacity or any subsequent treatment in connection with the inpatient care; or (2) continuing treatment from a health care provider.

What happens to my benefits while out on FMLA?
The employer maintains any pre-existing health insurance for the duration of the leave and at the level and under the same conditions coverage was provided prior to commencement of the leave. Employers can ask the employee to cover his/her share of the premiums that were paid through payroll deduction from the paycheck. Employers are not required to continue benefits like life and disability insurance but cannot require employees to re-qualify for benefits.

What happens to my position?
The employee must be restored to the original or an equivalent position with equivalent benefits, pay, and all other terms and conditions of employment. The highest paid 10 percent of salaried employees may be denied job restoration to prevent substantial and grievous economic injury to the employer.

What may the employer require to grant the leave?
An employer may require certification from a health care provider to support a claim for leave. But if an employer asks one employee for proof of a serious illness, the employer must ask all employees for equivalent certification.

Does the law apply to teachers too?
There are special rules that apply to “instructional employees” that are designed to minimize disruption in the classroom while still protecting the rights of the person on disability. The special rules apply to intermittent leaves, reduced leave schedules, and the taking of leave near the end of an academic term. More can be found in the Code of Federal Regulations (29 CFR 825.600 et seq.)

Other provisions of the law
• Leave can be taken intermittently, is subject to employer approval, and does not result in a reduction in the total amount of leave to which the employee is entitled.
• When husband and wife work for the same employer, the total amount of leave that they may take is limited to 12 weeks if they are taking leave for the birth or adoption of a child or to care for a sick parent.
• When the need for leave is foreseeable, an employee is required to provide at least 30 days advance notice.

Does not supersede state laws
The Act does not supersede any state or local law, collective bargaining agreement, or employment benefit plan providing greater medical and family leave rights, nor does it diminish their capacity to adopt more generous family leave policies.

Many states have laws that apply to smaller employers or last longer than the twelve weeks of the federal law. Each state’s own law regarding family and medical leaves can vary considerably from the federal FMLA, so it is important that you check your own state’s law as well when contemplating taking time off for medical reasons.


Confused about applying for disability? Click here

[Jacques Chambers, CLU, and his company, Chambers Benefits Consulting, have over 35 years of experience in health, life and disability insurance and Social Security disability benefits. For the past twelve years, he has been assisting people with their rights, problems, and other issues concerning benefits and disability. He can be reached at or through his website at:]

Copyright September 2004– AttorneyMind - All Rights Reserved. Permission to reprint is granted and encouraged with credit to the AttorneyMind.

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