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The American
Cancer Society does not offer legal advice. This information is
intended to provide general background in this area of the law.
What
is the FMLA?
The Family and Medical Leave Act (FMLA) of 1993 was designed
to help employees balance their work and family responsibilities by
allowing them to take reasonable unpaid leave for certain family and
medical reasons. The FMLA provides certain employees with up to 12
weeks of unpaid, job-protected leave per year. It also requires that
the employee's group health benefits be maintained during the leave.
To whom does the FMLA apply?
FMLA applies to all public and private employers with 50 or
more employees. These employers must provide an eligible employee with
up to 12 weeks of unpaid leave each year for any of the following
reasons:
- for the birth and care of the newborn child of an employee
- for placement with the employee of a child for adoption or
foster care
- to care for an immediate family member (spouse, child, or
parent -- but not a parent "in-law") with a serious health condition
- when the employee is unable to work because of a serious
health condition
Special rules apply to school employees. There are some limits
on reduced schedules and taking FMLA leave near the end of a term.
Special
FMLA rules for military families
In 2008, the FMLA was expanded to include "military family
leave entitlements." FMLA can be used by military families for these
purposes:
- The spouse, son, daughter, parent, or next of kin of a
member of the Armed Forces can now take up to 26 work weeks of leave to
care for the service member with a serious injury or illness.
- There may also be urgent family situations (called
"qualifying exigencies") that arise due to active military duty, which
may qualify family members to take up to 12 weeks of FMLA.
Spouses working for the same employer are limited to a
combined total of 26 work weeks in a single 12-month period if the
leave is to care for a covered service member. You can get more
detailed information from the Department of Labor (see "Additional resources")
or read their fact sheet on the Web at: www.dol.gov/esa/whd/regs/compliance/whdfs28a.pdf.
The rest of the
information shared here is focused only on FMLA for serious health
conditions such as cancer.
Who
can take FMLA leave?
Employees are eligible for FMLA leave if all of the following
apply:
- they have worked for their employer at least 12 months
- they have worked at least 1,250 hours over the past 12
months, about 25 hours per week
- they work at a location where the company employs 50 or
more employees within 75 miles
Military reservists returning from active duty are entitled to
the rights and benefits they would have had if they had been
continuously employed.
For example, George returned to his regular job after a 1-year
tour of active duty on June 1. On July 6, he learned that his child has
cancer and will need intensive treatment. He can request FMLA to care
for his sick child right away, even though his hourly job requirement
was not fulfilled. (For more details, see the memo from the Solicitor
of Labor online at www.dol.gov/vets/media/fmlarights.pdf,
or contact the Department of Labor -- see "Additional resources.")
What if I left my job and then returned to
it? What counts toward the1,250 hours that I need to qualify for FMLA?
First of all, the 12 months of service do not have to be
continuous or consecutive; all time you have worked for the employer is
counted. But, you still must have worked 1,250 hours in the past 12
months to qualify (unless you are a military reservist returning from
active duty, as mentioned before). The 1,250 hours include only those
hours actually worked for the employer or spent in active military
duty. Paid leave time, previous FMLA leave, and other absences from
work do not count toward the 1,250 hours.
Your individual record of hours worked is used to decide
whether 1,250 hours had been worked in the 12 months before you start
FMLA leave. The following may help you figure out whether the
1,250-hour requirement has been met:
- Roughly 25 hours worked in each of the 52 weeks of the past
year, or
- More than 104 hours worked in each of the 12 months of the
past year, or
- About 40 hours worked per week for more than 31 weeks (over
7 months) of the past year.
If you are a military reservist returning to your job after
active military duty, you will be treated as if you had been
continuously employed during your active duty period. See the section "Who can take FMLA leave?"
What counts as a serious health condition?
There is more than one way to define a serious health
condition. It can mean any illness, injury, impairment, or physical or
mental condition that involves any period of illness or treatment
connected with inpatient care. This means at least one overnight stay
in a hospital, hospice, or residential health-care facility, and any
period of illness or treatment which involves incapacity afterward --
which means the person cannot work, go to school, or perform regular
activities.
But a serious health condition does not always mean a hospital
stay. It may also be a condition that has ongoing treatment, which
includes any length of incapacity due to any of the following:
- a health condition (including treatment and
recovery from it) that lasts more than 3 days in a row, and any
treatment after that. It includes any length of incapacity related to
that same condition, and must also involve:
- being treated 2 or more times by or under the supervision
of a health care provider, or
- being treated once by a health care provider with a
ongoing regimen of treatment.
- a permanent or long-term condition for which
treatment may not be effective (for instance, a severe stroke, terminal
cancer). Only supervision by a health care provider is required, not
active treatment.
- any absences for surgery or multiple treatments for
a condition which would likely result in a period of incapacity if not
treated (for example, chemotherapy or radiation treatments for cancer)
How far ahead of time must I request FMLA
leave?
If possible, an employee must give an employer at least 30
days notice before FMLA leave is to start. This only applies to planned
medical treatments and elective surgery. Knowing that far ahead is
rarely possible when you have cancer. In the case of unexpected need
due to serious illness, you must let your employer know as soon as
possible, at least within 1 to 2 business days of when you first learn
you will need leave.
May I use FMLA to take off several short
periods?
The FMLA leave can be taken all at once or it can be taken in
shorter blocks of time, such as 2 days a week, or 1 week a month, as
long as it is taken for a single reason. FMLA can also be used to
reduce the amount of time you work each day, for instance, so that you
work a part-time schedule for awhile. You may need a doctor's note to
verify that your medical condition is serious and that you are unable
to work for these times, or that your family member's serious illness
requires you to take this time for his or her care.
Does time I took off for illness or
pregnancy count against my FMLA time if I need to take off again for a
new illness in the same 12 months?
Time taken off work because of any illness, pregnancy, or
complications of pregnancy can be counted against the 12 weeks of
family and medical leave in a 12-month period. The employer must let
the employee know that the pregnancy leave was counted as FMLA.
Does workers' compensation leave count
against my FMLA leave?
It can. FMLA leave and workers' compensation leave can run
together. This means that time off for a serious work-related injury or
illness can be counted as FMLA leave. The employer must notify the
employee when the leave time starts that the workers' compensation
leave will be counted as FMLA leave.
Who
defines the 12-month period during which
can I take off up to 12 weeks under the FMLA?
In selecting your 12-month period, the employer may choose to
use:
- the calendar year, January through December
- any fixed 12-month "leave year" such as their
fiscal year, or a year required by state law
- a year that starts on the your anniversary date
(counted from the date you were hired)
- the 12-month period counted forward from the date
your first FMLA leave begins
- a "rolling" 12-month period measured backward from
the date you used FMLA leave
Can I use my sick or vacation time for FMLA
so that I can be paid?
The FMLA only requires unpaid leave. But it permits an
employee to choose to use accrued paid leave, such as vacation or sick
leave, for some or all of the FMLA leave period. The law also permits
the employer to require the employee use paid leave in this way. The
employer must decide if an employee's use of paid leave counts as FMLA
leave, based on information from the employee. When paid leave is used
instead of unpaid FMLA leave, it may be counted against the 12 weeks of
FMLA leave if the employee is notified that this is the case when the
leave begins.
Who counts as immediate family?
An employee's spouse, son or daughter under the age of 18, and
parents are immediate family members for FMLA purposes. The term
"parent" does not include a parent in-law. The terms "son" or
"daughter" do not include those age 18 or over unless they are unable
to take care of themselves because of mental or physical disability
that limits one or more of the major life activities as those terms are
defined in regulations issued by the Equal Employment Opportunity
Commission (EEOC) under the Americans With Disabilities Act (ADA).
For military families in certain situations, the son,
daughter, parent, or next of kin of an adult armed forces member can
take FMLA to provide care for up to 26 work weeks. See the section
"Special
rules for military families" under "What is the FMLA?"
If you are taking FMLA leave to take care of someone else,
your employer may require that you prove your relationship with that
person. You may also have to provide proof that he or she has a serious
illness.
Must I give my employer my medical records?
What is medical certification?
No, you do not have to provide medical records to use FMLA.
The employer may request that, for any leave taken due to a serious
health condition, you provide a medical
certification which confirms
that a serious health condition exists. This is usually a note or form
signed and dated by a doctor that states all of the following:
- that you (or your family member) have a serious
illness
- when the illness started
- whether absences are expected to be continuous or
in short blocks of time
- when you may be expected to return to work
- whether further treatment will be needed after the
absence
If your employer asks you for an update on your medical
certification or for a second opinion, you may need to provide it in
order to keep your FMLA rights (see below).
Can my employer inquire about my leave while
I am absent?
Yes, your employer can ask about your leave during the time
you are out, but they can only ask you. Your employer may ask you
questions to confirm whether the leave you are taking qualifies for
FMLA. The employer may also require that you give them reports on your
status and ask whether you intend to return to work after leave.
If the employer wants a second opinion about your condition,
you may have to get another medical certification (a letter or form
signed by a doctor that states that a serious illness is involved). The
employer would have to pay for this.
The employer may also have a doctor representing them contact
your doctor or health care provider, but they need your permission to
do so. They can contact your doctor only to clarify what is said in
your medical certification or to be sure that it was actually written
by him or her. They may not
try to get more information about your
health condition or that of a family member.
Can my employer make me come back to work
before I run out of FMLA time?
Under some conditions, your employer may deny your continuing
on FMLA leave if you do not provide the required medical certification
(written information signed by your doctor.). But the employer may not
make you return to work early by offering you a light duty assignment.
Will I lose my job if I take FMLA leave?
Most of the time, employees will not lose their jobs if they
use FMLA leave. When you return to work, employers must give you the
same job or an equivalent one. Employers are not allowed to interfere
with, restrain, or deny any right provided under this law. Employers
cannot use taking FMLA leave as a negative factor in employment
decisions, such as hiring, promotions, or disciplinary actions. Also,
FMLA leave cannot be counted under "no fault" attendance policies.
The employer does not have to allow certain highly paid,
salaried ("key") employees to return to the same job after FMLA leave.
But the employer still must allow the FMLA leave and maintain the
employee's benefits. The key employee can ask to be restored to his or
her former job after the leave is over. It's important to know that the
employer may refuse to let the employee go back to his or her previous
job if doing so causes "substantial and grievous" financial injury to
the company.
Employers are also not required to continue FMLA benefits or
give jobs back to employees who would have been laid off or otherwise
would have lost their jobs if they had continued to work during the
FMLA leave period as, for example, due to a general layoff.
Employees who state that they do not intend to return to work
lose their rights to FMLA leave and the job. Employees who are unable
to return to work and have used up their 12 weeks of FMLA leave in the
12-month period (see section, "Who defines
the 12-month period during which
can I take off up to 12 weeks under the FMLA?") no longer
have FMLA
protections of leave or of getting their jobs back.
In some cases, if an employer has told an employee that they
need a medical statement that he or she is fit for duty and can return
to work, and the employee does not get that statement, the employer may
not allow the employee to come back to the job. Or the employer may
delay the employee's return until they get the statement.
Can my employer refuse to grant me FMLA
leave?
If you are an eligible employee who has met FMLA's notice and
certification requirements (written information from your doctor), and
you have not already used up your FMLA leave for the 12-month period,
you may not be denied FMLA leave. But any employee who lies or uses
fraud to get FMLA leave from an employer loses his or her FMLA rights
to get back their job or to keep their health benefits.
Do I have to pay for my health care
insurance while I am on FMLA leave?
Your employer is required to keep your group health insurance
coverage while you are on FMLA leave if health insurance was provided
before the leave was taken. It must be kept on the same terms as if you
had continued to work. If you paid all or part of the health care
premiums, arrangements will need to be made for you to continue to pay
your share while on leave.
In some cases, the employer may make you repay the premiums it
paid to keep your health coverage if you do not return to work after
FMLA leave. Your employer cannot do this if your reason for not going
back to work was your or your family member's serious health condition.
You may need to check with the Wage and Hour Division of the Department
of Labor if your employer asks that you pay back the premiums. See the "Additional resources"
section.
Are federal government employees covered by
the FMLA?
Most employees of the United States government are covered by
the FMLA or similar rules. Federal employee leave policies are
administered by the U.S. Office of Personnel Management (OPM). You may
need to contact your agency's personnel or human resources office to
find out exactly what applies to you.
I work for a company that employs fewer than
50 people. Is there any kind of leave my employer must offer?
Some states have their own laws or requirements for employers,
and there may be other laws that apply to your situation. You can
contact the Department of Labor (listed in the "Additional resources"
section ) to find someone who knows more about your state.
Where can I find out more about the FMLA?
To learn more about FMLA provisions and rules, read the FMLA
Fact Sheet posted on the U. S. Department of Labor Web site at:
www.dol.gov/esa/whd/regs/compliance/whdfs28.pdf,
or call the Wage and
Hour Division's referral and information line at the Department of
Labor at 1-866-4 US WAGE (1-866-487-9243). They can give you other
helpful information and tell you how to reach the Department of Labor
division office nearest you.
Additional
resources
More information from your American Cancer
Society
The following information may also be helpful to you. These
materials may be ordered from our toll-free number, 1-800-ACS-2345.
National organizations and Web sites*
Along with the American Cancer Society, other sources of
patient information include:
Cancer and
Careers (for working women)
Telephone: 212-685-5955
Web site: www.cancerandcareers.org
Cancer Legal
Resource Center (CLRC)
Toll-free number: 1-866-843-2572
Web site: www.cancerlegalresourcecenter.org
United States
Department of Labor, Wage and Hour Division
Toll-free number: 1-866-4 US WAGE (1-866-487-9243)
Web site: www.dol.gov/esa/whd/fmla
For more detail, visit:
www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/toc.htm.
This site
includes subsections with pages that explain more about FMLA, including
school employee rules, how it impacts state law, employer policy
variations, and more.
*Inclusion on
this list does not imply endorsement by the
American Cancer Society
No matter who you are, we can help. Contact us anytime, day or
night, for information and support. Call us at 1-800-ACS-2345 or
visit
www.cancer.org.
References
Scalia E. (memorandum). Protection of Uniformed Service
Members' Rights to Family and Medical Leave. Accessed at:
www.dol.gov/vets/media/fmlarights.pdf on March 19, 2009.
United States Department of Labor. Fact Sheet #28: The Family
and Medical Leave Act of 1993. Accessed at:
www.dol.gov/esa/whd/regs/compliance/whdfs28.pdf on March 19, 2009.
United States Department of Labor. Fact Sheet #28A: The Family
and Medical Leave Act Military Family Leave Entitlements. Accessed at:
http://www.dol.gov/esa/whd/regs/compliance/whdfs28a.pdf on March 19,
2009.
United States Department of Labor. Family and Medical Leave
Act of 1993 as amended January 2008. Accessed at:
www.dol.gov/esa/whd/fmla/fmlaAmended.htm on March 19, 2009.
United States Department of Labor. Frequently Asked Questions
and Answers. Accessed at www.dol.gov/elaws/esa/fmla/faq.asp on March
19, 2009.
United States Department of Labor. Code of Federal Regulations
Pertaining to ESA. Part 825: The Family and Medical Leave Act of 1993.
Accessed at: www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/toc.htm on
March 19, 2009.
United States Department of Labor. Leave Benefits: FMLA.
Accessed at:
http://www.dol.gov/dol/topic/benefits-leave/fmla.htm#doltopics on March
19, 2009.
United States Equal Employment Opportunity Commission. The
Family and Medical Leave Act, the Americans with Disabilities Act, and
Title VII of the Civil Rights Act of 1964. Accessed at:
www.eeoc.gov/policy/docs/fmlaada.html on March 19, 2009.
United States Office of Personnel Management. Family-Friendly
Leave Policies for Federal Employees. Accessed at:
www.opm.gov/oca/leave/html/levbro.htm on March 19, 2009.
Last Medical Review: 04/02/2009
Last Revised: 04/09/2009
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