Is your employer required to give you unpaid leave to take care of your child? What about to take care of a sick spouse? Do employees have any right to job-protected, unpaid medical leave?
The Family and Medical Leave Act (FMLA) gives gives employees the right to twelve weeks of job-protected, unpaid leave in any twelve-month period for certain family and medical circumstances. This leave taken under the FMLA is referred to as FMLA leave.
Thus, an employer must give its employees leave when they request it under the FMLA. Further, an employer cannot fire an employee on FMLA leave or fire an employee because he is about to take FMLA leave.
The FMLA covers employers who have employed 50 or more employees for at least twenty weeks. Unlike with Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, employees for purposes of the FMLA are defined using the payroll method—that is, if a worker is on the payroll, he is an employee.
However, not all employees are entitled to FMLA leave. The FMLA only grants rights to those employees who work for a covered employer, who have been employed by that employer for at least twelve months, who has been employed for at least 1,250 hours of services for that employer during the previous twelve months, and who has been employed at a worksite where that employer has 50 or more employees within 75 miles of the site.
The FMLA is enforced by the Department of Labor.
Leave EntitlementsEmployees are entitled to FMLA leave only under certain circumstances: the birth of a child or to care for a newborn child, the placement of a child for adoption or foster care, to care for a family member with a serious health condition, or because the employee has a serious health condition that keeps him from performing his job.
For example, an eligible employee who is pregnant is entitled to take her twelve weeks of unpaid leave under the FMLA for the birth of her child and to take care of the child. Similarly, an employee who needs time for HIV treatment is entitled to leave under the FMLA.
Leave for birth and care of a child can be given to both male and female employees, but must be completed within a year of the birth of the child. Further, an employee can only take leave intermittently or work on a reduced schedule if the employer agrees.
Take, for example, an male employee’s spouse gives birth on April 8, 2016. He is entitled to twelve weeks of FMLA, but they must be completed by April 8, 2017. Further, he must take those twelve weeks of leave at once, unless his employer agrees to intermittent leave or to reduce his hours.
FMLA leave must also be given to an employee eligible employee to care for a family member with a serious health condition. Under the FMLA, family member includes an employee’s spouse, parent, or child. Further, the relationship does not necessarily have to be a biological relationship. For example, an eligible employee could take FMLA leave to take care of a person who simply acted—financially and responsibly—as a parent to the employee.
Employers must also give employees leave under the FMLA if an employee has a serious health condition that keeps him from performing his job. An employee can be unable to perform his job even if he is not too sick to work. For example, an employee is unable to perform the essential functions of his job if he has to miss work to receive medical treatment, to go to doctor’s appointments, or to go to the doctor to get his condition diagnosed.
The Department of Labor defines serious health conditions as an illness, injury, impairment, or condition that involves both inpatient care and continuing treatment by a healthcare provider.