What Protections Do I Have if I Need to Take Sick Leave or Care for a Family Member?

The Family Medical Leave Act, often referred to as FMLA, is a federal law that applies to employers of 50 or more employees and to employees with at least 12 months of service plus at least 1250 hours of work within the last year. FMLA permits you to take a leave of up to 12 consecutive weeks to:

(a) care for yourself if you have a serious health condition;

(b) for pregnancy/childbirth, adoption or foster care;

(c) to care for your spouse, parent, son or daughter; or

(d) to care for your spouse, son, daughter, or parent who is on active duty with, or has been notified of an impending call or order to active duty from, the National Guard or Reserves in support of a contingency operation.

In addition, if you are a spouse, son, daughter, parent or next of kin of a covered servicemember with a serious injury or illness, your employer must grant you up to a total of 26 workweeks of unpaid leave during a “single 12-month period” to care for that servicemember. A covered servicemember is defined as a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. The serious injury or illness must be incurred in the line of duty while on active duty. For more detailed information about military family leave entitlements, go to http://www.dol.gov/whd/regs/compliance/whdfs28a.pdf

FMLA leave can be taken consecutively or on an intermittent basis. It is unpaid leave, but the employer can, at its option, choose to pay you while you are on leave, and/or to apply your accrued sick and vacation time to the leave so that you are paid for those days. FMLA leave may also run concurrently with short-term disability leave and benefits. During the leave, the employer must maintain your health insurance benefits under the same conditions as if you remained at work, but if you do not return to work at the end of the FMLA leave, the employer may be able to recoup the premiums under certain circumstances.

As long as you return to work by the end of the FMLA period, you have a right to return to your original job or an equivalent job with equivalent pay, benefits and other terms and conditions of employment. (There is an exception if the employer can show it was planning to terminate you even if you hadn’t taken the leave — for example because of your performance before your leave began, or because of mass layoffs affecting a group of employees including you.) If you are a key employee, your rights are more limited. In addition to job return rights, FMLA prohibits employers from retaliating against employees who take FMLA leaves.

For notice requirements and other general information about FMLA, go to http://www.dol.gov/whd/fmla/index.htm