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Family and Medical Leave: Rights and Responsibilities

Q: Who is entitled to family and medical leave?
A: You are entitled to family and medical leave under the Family and Medical Leave Act of 1993 (FMLA) if:
  1. your employer employs 50 or more employees or you work for a public agency or private elementary or secondary school;
  2. you have worked for your employer for at least 12 months;
  3. you worked at least 1250 hours during the 12 months before the beginning of your leave; and
  4. your employer has 50 or more employees within 75 miles of your work site.


Q: For what reasons may I take family or medical leave?
A: You may take an FMLA leave for the birth or care of your newborn child or the placement with you of a child for adoption or foster care. You also may take FMLA leave to care for an immediate family member (spouse, child or parent) with a serious health condition or because of your own serious health condition.

Q: What if I have a family member in the military?
A:
Under the National Defense Authorization Act of 2008 (NDAA) eligible employees are entitled to FMLA leave due to a "qualifying exigency" arising out of the employee's spouse, child or parent's active duty in the armed services. Covered active duty requires deployment to a foreign country. Examples of qualifying exigencies are short-notice deployments, military events, financial and legal arrangements, rest and recuperation, and post-deployment activities. Eligible employees are also entitled to take leave to care for a covered service member or recent veteran with a serious injury or illness if the employee is the service member's spouse, son, daughter, parent or next of kin. Next of kin means the nearest blood relative other than the spouse, son, daughter or parent of the covered service member or recent veteran. Leave to care for a recent veteran is covered if the veteran was in the service within the last five years and was injured in the line of duty or had a preexisting condition aggravated in the line of duty.

Q:  How much leave may I take?
A: 
If you are eligible for FMLA leave, you are entitled to take up to 12 work weeks of FMLA leave during any 12-month period. If you are taking FMLA leave to care for a family member in the military service who becomes seriously ill or injured in the line of duty, you are entitled to take up to 26 work weeks of leave during any 12-month period. Be sure to ask your employer how the 12-month period is measured. If you are taking leave due to a "qualifying exigency," the leave may be restricted to a certain number of days (e.g., fifteen days for rest and recuperation).

Q: What if I don't need 12 full weeks?
A:
If you are taking leave to care for a seriously ill spouse, child, parent, or for your own serious health condition, you may be able to take "intermittent" leave, or FMLA leave taken in smaller blocks of time. You must demonstrate that taking intermittent leave is medically necessary, and you must try to schedule medical treatments or your time off in a way that won't disrupt your employer's operations.

Q: What is considered a serious health condition according to the Act?
A:
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either in-patient or continuing treatment by a health care provider. The condition generally must last more than three consecutive days. Some chronic and/or long-term conditions may qualify as serious health conditions if they involve periodic visits to a health care provider.

Q: What is meant by "continuing treatment"?
A:
"Continuing treatment by a health care provider" usually means two or more visits to a health care provider or a single visit to a health care provider with continuing treatment such as prescription medication or therapy.  If you (or a family member in your care) have a chronic serious health condition, you may not need to visit the doctor every time you take time off from work.

Q: Is FMLA leave paid or unpaid?
A:
FMLA leave is usually unpaid unless your employer has a paid leave plan. The law requires your employer to continue your group health benefits during the term of the leave. If you pay a portion of the premium, you must continue to do so during the leave.

Q: What do I have to do to get FMLAleave?
A:
You must give your employer as much notice as possible of your need to take an FMLA leave. You must also provide your employer with enough information to determine that you qualify for an FMLA leave. If your leave is for your own or a family member's serious health condition, your employer will probably ask you to provide a certification from the health care provider. That certification tells your employer why and for how long you need to be away from work. Be sure to ask your employer for any forms you need to complete for FMLA leave.

Q: Is my job protected while I am on family or medical leave?
A:
If you take a qualifying FMLA leave, you must be given the same or an equivalent job when you return. If you take intermittent leave, your employer may temporarily transfer you to another position that better accommodates your need for short blocks of leave time.

Q: Are there any exceptions to the job protection?
A:
If you are considered a "key" employee, your employer may deny you reinstatement to your position if that reinstatement would cause the employer substantial economic harm. Your employer must notify you that you are considered a key employee before you take the FMLA leave.

Q: Do I have any other rights under the FMLA?
A:
Yes. Your employer may not discharge or otherwise discriminate against you simply because you exercise rights under the FMLA.  Your employer cannot count FMLA absences against you under a no-fault attendance system. You have the right to file a complaint with the Department of Labor Wage and Hour Division or you may sue your employer in court for violations of the Family and Medical Leave Act.

Q: How do I find out more about my rights under the Family and Medical Leave Act?
A:
Your employer should have a notice posted in your work place informing you of your rights under the FMLA. A description of your rights should also be included in an employee handbook or in a summary of employee benefits.

4/29/2013

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Margaret J. Lockhart, a Toledo attorney.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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