FMLA helps preserve jobs only for employees who meet certain criteria.
Enacted in 1993, the Family and Medical Leave Act or FMLA was put into place to protect workers in the case of serious illness, the birth or adoption of a child, or a need to assist a close family member who has a serious or chronic illness. Employers with 50 or more employees are required to provide FMLA to employees who qualify. Those qualifying for FMLA must provide documentation and appropriate notice to employers in order to take FMLA leave.
Eligibilty
Coverage of FMLA does not extend to all employees. The employer must have 50 or more employees within a 75-mile radius. In addition, the employee must have worked for at least 12 months and for at least 1,250 hours during those months. New employees are not eligible until they meet these criteria. The 12 months of employment does not have to be consecutive, but employees who were not serving in the military may not be eligible if there is a break in service of seven years of more.
Stipulations
Eligibility for FMLA is contingent upon the nature of the situation. Not all illnesses allow employees to qualify for FMLA. Eligible employees may be granted FMLA leave for the birth and care of a newborn child or the placement of a child with the employee from adoption or foster care. Eligible employees also may take leave to care for a spouse, child or parent who has a serious health condition, or when they are unable to work because of their own serious health condition. There is considerable debate in both businesses and courtrooms over what situations and illnesses qualify. For example, an employee wishing to take FMLA leave to assist an ill grandparent may do so if that grandparent is the employee's legal guardian. Continuous absences based on colds or flu that last less than two or three days and do not require medical assistance may not qualify. Employers always have the right to request medical documentation when approving FMLA.
Employer Notice
Giving notice concerning FMLA leave is a responsibility of both the employer and the employee. Employees do not have to specifically request FMLA leave; they must only request leave for a condition or situation that meets the criteria. It is the employer's responsibility to inform the employee of his or her rights under FMLA. Not providing reasonable or practical notice to the employer may disqualify employees from receiving FMLA leave. For example, most people know at least a few days ahead of time if they are having surgery and therefore should inform their employer as soon as possible. However, no one can predict a heart attack or car accident; therefore, notice must be given as soon after the event as possible. FMLA has been denied in some case because an employee failed to give reasonable notice.
Denying FMLA
Denying FMLA for eligible employees is difficult. Key employees who make salaries in the top 10 percent of the company and without whom the company would suffer grievous injury do not have the same eligibility. Although they must be granted FMLA leave, they do not have to be reinstated into their positions. Employees who would have been terminated regardless of the FMLA situation may be terminated as if the FMLA request had not been made. Substantial documentation is necessary for these situations.
FMLA Amendment
A 2009 amendment to the FMLA extends eligibility to employees whose spouse or child is on active duty or call to active duty status. Conditions that fall outside the normal criteria for FMLA do not apply in these cases either. If the spouse or child suffers a serious illness or injury as a result of military duty, FMLA is extended to as much as 26 weeks. Criteria for qualifying for this are also extended to a "next of kin" who incurs a serious illness.
