I try to provide information that is timely when given the opportunity to submit an article to City & Town. Based on the number of calls that I have received in the past two months, I thought it might be time for a quick Family and Medical Leave Act (FMLA) review.

What is it?

The FMLA is a federal labor law requiring employers of a certain size to provide employees with unpaid leave time for serious family health issues or situations. The FMLA allows covered employees to balance their work and family life by taking up to 12 weeks of unpaid leave for certain family and medical reasons.

Who is a covered employer, and are all employees eligible for FMLA?

When it comes to the FMLA, all cities are “covered employers.” However, in order for city employees to be eligible for leave under the FMLA, the city must have at least 50 employees, according to U.S.C. § 2611(2)(B)(i). If as an employer you meet that requirement, there are other factors to consider as well. An employee is eligible for FMLA if they work for a covered employer and the employee has worked for that employer for at least 12 months and has worked at least 1,250 hours during the 12 months prior to the start of FMLA leave, and the employee must work at a location where the employer has at least 50 employees within a 75-mile radius. The word “and” is important because to be eligible for FMLA, an employee must have met all the criteria outlined above.

What is an FMLA qualifying event?

An employee can request FMLA leave for the following qualifying events:

• The birth of a child and to care for the newborn child;
• The placement with the employee of a child for adoption or foster care and to care for the newly placed child;
• To care for an immediate family member (spouse, child under the age of 18 or parent—but not parent-in-law) with a serious health condition; and
• When the employee is unable to work due to a serious health condition.

Does the 12-week limit apply to all qualifying events?

There is an exception for military service members. An eligible employee may take up to 26 weeks during a 12-month period to care for a covered service member with a serious illness or injury.

Do the 12 weeks of leave have to be taken all at once?

In some circumstances, FMLA may be taken intermittently or on a reduced schedule basis. For example, FMLA may apply to an employee with a chronic condition who must have weekly doctor’s visits. Only the amount of leave actually taken can be charged as FMLA leave.

What is the definition of a serious health condition?

Under FMLA, a serious health condition is:

• Any period of incapacity or treatment connected with inpatient care in a hospital, hospice or residential medical care facility; or
• A period of incapacity requiring absence of more than three calendar days from work, school or regular daily activities that also involves continuing treatment of a health care provider; or 
• Any period of incapacity due to pregnancy, or for prenatal care; or
• Any period of incapacity due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
• A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or
• Any absences to receive multiple treatments by, or on a referral by, a health care provider for a condition that likely would result in incapacity of more than three days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

Can FMLA leave run concurrently with an employee’s leave time so that the employee can be paid during the qualifying event?

FMLA can run concurrently with an employee’s leave time. Having a policy that permits FMLA to run concurrently with an employee’s leave time allows an employee’s pay to continue while they are off work for a qualifying event. It is important to note that while an employee is on FMLA leave and using their accumulated leave time concurrently with FMLA, the employee will continue to accrue additional leave time. It is only when an employee is on unpaid leave that their benefits are impacted.

How do I determine if an employee has a qualifying event?

An employer can require that an employee provide a certification issued by a health care provider validating the serious health condition of the employee or the employee’s immediate family member. The Department of Labor provides forms that an employer can present to an employee. The forms can be found at www.dol.gov/fmla. An employee must be given a minimum of 15 days to return the completed form to the employer.

What is the definition of a health care provider?

The definition of a health care provider is broad and includes not only medical doctors and specialists, but also nurse practitioners, midwives, clinical social workers, Christian Science practitioners, and any health care provider recognized by the employer’s group health plan.

In addition to providing an employee with 12 weeks of unpaid, job-protected leave for a FMLA qualifying event, what is an employer required to do?

A covered employer is required to maintain group health coverage, including family coverage, for an employee taking FMLA leave on the same terms as if the employee continued to work. If the employee is required to pay a portion of the premium, the employee must continue to do so. Other benefits do not need to be maintained during periods of unpaid leave.

There is so much to know about FMLA and this short article has touched on the basics only. There are many other complicated issues that arise on a case-by-case basis. Please know that the League is here to help. Feel free to contact me with any questions that you have. It is always my pleasure to be of service.