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:

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.

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