Your Rights Under FMLA

There are very few laws that most of our clients can cite, but FMLA is one of them.  Of course, most probably don’t know that FMLA stands for the Family Medical Leave Act which was codified at 29 U.S.C. §§ 2601-2654 and became effective in 1993.  Even if most people don’t know the details, they are typically well-aware that FMLA generally provides for medical leave from a job.  Unfortunately, FMLA does not provide the sweeping coverage and benefits that the general public expects.  With regard to FMLA, the “devil is in the details,” which is why most people, in my experience, are disappointed and even resentful when they discover that an employer is not subject to FMLA regulations or that their employer is not required to provide paid medical leave.

FMLA allows an “eligible employee” of a “covered employer” unpaid, job-protected leave for no more than 12 weeks during a 12-month period because:

  • Of the birth of a son or daughter, or to care for the newborn child;
  • Of the placement with the employee of a child for adoption or foster care;
  • The employee is needed to care for a family member with a serious health condition; or
  • The employee’s serious health condition makes the employee unable to perform the functions of his/her job.

The purpose of FMLA is to allow employees to balance their work life with family life through reasonable periods of unpaid leave that accommodate the legitimate interests of the employer.

Sounds great, right?  Well, the key is in knowing whether or not you are covered by FMLA.  First, you must determine if you work for a “covered employer.”  Covered employers include (1) public sector employers (are you employed by the federal government?) and (2) pretty much any business that affects commerce and has 50 or more employees (although we can go further into details about calculating the number of employees if you’re feeling nitpicky).  A good number of people are surprised to find out that their employer has fewer than 50 employees and, therefore, is not required to provide leave under FMLA.

If you are lucky enough to work for an employer who is subject to FMLA, you must then determine if you are an eligible employee.  An eligible employee is one who has been employed by the covered employer for at least 12 months; has been employed for at least 1,250 hours of service for that employer during the previous 12 months (meaning you can’t be a part-time employee); and has been employed at a worksite where that employer has 50 or more employees within 75 miles of the site.

So, are you covered? Yes?  Well then, congratulations!  Now, let me tell you what you’ve won!  You have won the right to take up to 12 weeks of unpaid leave.  Before you can take that leave, however, you must give your employer notice identifying a qualifying reason under the FMLA and stating the anticipated timing and duration of the leave.  Additionally, if your leave is foreseeable (such as in the case with birth of a child, adoption, or planned medical treatment for a serious health condition), you are expected to give your employer 30 days’ notice.  If your leave is unforeseeable or giving 30 days’ notice is not practicable, you must give notice as soon as possible and practical.

The most commonly recognized reason for leave is the birth of a newborn.  Although women are responsible for baking the bun in the oven and delivering it when it’s done, this allowance for leave under FMLA applies equally to male and female employees.  However, spouses employed by the same employer are limited to an aggregate of 12 weeks of leave in any 12-month period.  Although leave for the birth of a newborn must be completed within 12 months of the birth, an employee may take the leave intermittently or on a reduced leave schedule to care for a newborn only if the employer agrees.

With regard to adoption or foster care, employers are required to grant leave if the employee is required to attend counseling sessions, appear in court, or consult with an attorney or doctor, or the like in order for the placement for adoption or foster care to proceed.  However, FMLA does not allow for an employee to take lave after the adoption is finalized or even to take leave to retrieve adopted children from another country after an adoption is finalized.

An employer must grant FMLA leave for an eligible employee to care for a family member with a serious health condition.  However, a “family member” is limited to an employee’s spouse, son, daughter or parent.  This does not include a parent-in-law, nor does it include children who are over the age of 18, competent, and without a physical disability.  In June 2014, the definition of a “spouse” was revised to include employees in legal same-sex marriages, regardless of where they live.

Finally, an employee is entitled to leave when she has a serious health condition that makes her unable to perform the functions of her position, which is determined when a health care provider certifies that the employee is totally unable to work or is unable to perform any of the essential functions of the employee’s position.  FMLA specifically defines a serious health condition as “an illness, injury, impairment, or physical or mental condition that involves: (A) inpatient care in a hospital hospice, or residential medical facility; or (B) continuing treatment by a health care provider.”  Therefore, FMLA does not provide leave for your rhinoplasty.  It does, on the other hand, provide leave for treatment of substance abuse if the abuse is caused by a serious health condition defined under the terms of FMLA.

For more detailed information regarding your rights under the FMLA, visit the Department of Labor website: http://www.dol.gov/whd/fmla/

Theresa Berend

After being licensed by the State of Texas in 2004, Theresa practiced commercial litigation in downtown Fort Worth, Texas, for over eight years. During her tenure at a well-known Fort Worth law firm, Theresa worked on multi-million dollar lawsuits involving large corporations and complex legal issues, including employment law matters. In 2012, Theresa formed The Berend Law Firm, PLLC which provides counsel regarding employment law, estates and trusts, and non-profit law for individuals and small businesses.

Learn More

This Post Has 29 Comments
  1. Folly was these three and songs arose whose. Of in vicinity contempt together in possible branched. Assured company hastily looking garrets in oh. Most have love my gone to this so. Discovered interested prosperous the our affronting insipidity day. Missed lovers way one vanity wishes nay but. Use shy seemed within twenty wished old few regret passed. Absolute one hastened mrs any sensible.

  2. It’s perfect time to make some plans for the future and it’s time to be happy. I’ve read this post and if I could I desire to suggest you few interesting things or tips. Maybe you can write next articles referring to this article. I desire to read more things about it!

  3. Thank you for the sensible critique. Me & my neighbor were just preparing to do some research on this. We got a grab a book from our area library but I think I learned more clear from this post. I’m very glad to see such wonderful information being shared freely out there.

  4. Hi I am so glad I found your blog page, I really found you by accident, while I was researching on Bing for something else, Regardless I am here now and would just like to say kudos for a marvelous post and a all round thrilling blog (I also love the theme/design), I don’t have time to go through it all at the minute but I have bookmarked it and also added in your RSS feeds, so when I have time I will be back to read a great deal more, Please do keep up the great job.

  5. Virtually all of the things you say is supprisingly legitimate and it makes me ponder the reason why I had not looked at this in this light before. Your article truly did turn the light on for me personally as far as this specific subject matter goes. Nevertheless there is one particular issue I am not too comfortable with so whilst I attempt to reconcile that with the central theme of the issue, let me observe what all the rest of your subscribers have to say.Nicely done.

  6. Pretty part of content. I simply stumbled upon your web site and in accession capital to assert that I acquire actually loved account your blog posts. Any way I’ll be subscribing for your augment and even I fulfillment you get admission to persistently rapidly.

  7. I know this if off topic but I’m looking into starting my own weblog and was curious what all is needed to get setup? I’m assuming having a blog like yours would cost a pretty penny? I’m not very internet smart so I’m not 100 positive. Any tips or advice would be greatly appreciated. Thanks

  8. There are some interesting cut-off dates on this article but I donít know if I see all of them middle to heart. There’s some validity however I’ll take hold opinion until I look into it further. Good article , thanks and we wish more! Added to FeedBurner as effectively

  9. I’m really impressed along with your writing talents as smartly as with the structure on your blog. Is this a paid theme or did you modify it your self? Anyway stay up the nice quality writing, it is uncommon to look a nice weblog like this one these days..

  10. Great blog! Is your theme custom made or did you download it from somewhere? A theme like yours with a few simple tweeks would really make my blog stand out. Please let me know where you got your design. Bless you

  11. I was suggested this blog by my cousin. I’m not sure whether this post is written by him as nobody else know such detailed about my problem. You’re wonderful! Thanks!

  12. Write more, thats all I have to say. Literally, it seems as though you relied on the video to make your point. You definitely know what youre talking about, why throw away your intelligence on just posting videos to your weblog when you could be giving us something informative to read?

  13. I loved up to you’ll receive carried out right here. The comic strip is attractive, your authored material stylish. nevertheless, you command get bought an edginess over that you would like be turning in the following. unwell definitely come further until now again as exactly the same nearly a lot often within case you protect this increase.

  14. What i do not understood is actually how you are not actually much more well-liked than you may be now. You’re so intelligent. You realize therefore significantly relating to this subject, made me personally consider it from so many varied angles. Its like men and women aren’t fascinated unless it’s one thing to accomplish with Lady gaga! Your own stuffs excellent. Always maintain it up!

  15. I have discovered some new items from your web-site about pcs. Another thing I’ve always imagined is that computer systems have become a product that each home must have for many reasons. They offer convenient ways in which to organize households, pay bills, shop, study, tune in to music and also watch television shows. An innovative method to complete all of these tasks is by using a notebook computer. These desktops are mobile ones, small, effective and transportable.

  16. It’s actually a cool and useful piece of information. I’m glad that you shared this useful info with us. Please keep us informed like this. Thanks for sharing.

  17. You really make it seem so easy with your presentation but I find this topic to be really something that I think I would never understand. It seems too complicated and extremely broad for me. I’m looking forward for your next post, I will try to get the hang of it!

  18. Someone necessarily help to make significantly posts I would state. That is the first time I frequented your web page and up to now? I amazed with the analysis you made to create this actual submit incredible. Excellent task!

  19. Hey there! Do you use Twitter? I’d like to follow you if that would be okay. I’m absolutely enjoying your blog and look forward to new posts.

  20. Theresa, thank you so much for the post. It is a wonderful explanation of FMLA…in fact, I will be pointing my employment clients here for a great snapshot of the law!

Leave a Reply

Your email address will not be published.

Back To Top
×Close search
Search