The Family and Medical Leave Act (FMLA) is a federal law that provides eligible employees with the right to take unpaid leave from work for qualifying reasons. This law provides important protections to employees working for covered employers across the U.S. Here is a brief guide for employees about the FMLA from the attorneys at Swartz Swidler.
Which Employers Are Covered by the FMLA?
The FMLA does not cover all employers in the U.S. Instead, it covers public sector employers, including local, state, and federal employers, K-12 public schools, and private sector employers with 50 or more employees that work within 75 miles of each other.
Which Employees Are Eligible to Take Leave Under the FMLA?
Just like the FMLA does not cover all employers, not all employees are eligible to take leave under this law. To be eligible, you must meet the following requirements:
- Work for a covered employer
- Have worked for your employer for at least 12 months before the date of your leave
- Must have worked a minimum of 1,250 hours during the previous 12 months for your employer
- Must be taking leave for a qualifying reason
When Can You Use FMLA Leave?
If you are an eligible employee who works for a covered employer, you are entitled to take up to 12 weeks off from work for a qualifying reason. The qualifying reasons are discussed below.
1. Serious Health Condition
You can take leave from your job under the FMLA to care for your serious health condition or that of your child, spouse, or parent. The most common types of health conditions that qualify under the FMLA include the following:
- Conditions that require an overnight hospital stay
- Incapacitating conditions that last for three or more days and require continuing treatment
- Chronic medical conditions that cause intermittent periods of incapacitation that require treatment two or more times per year
- Pregnancy and pregnancy-related conditions
2. Military Family Leave
The FMLA also includes some protection for military families. You can take leave under the FMLA for certain reasons related to your family member’s deployment. You can also take up to 26 weeks of unpaid leave under the FMLA in 12 months to care for a service member who is suffering from a serious injury or illness.
3. New Children
The FMLA allows eligible employees to take time off from work to bond with a newborn baby, a newly adopted child, or a child placed in their homes from the foster care system. Both men and women can take FMLA leave to bond with new children. However, you must take this type of leave within one year of the birth or placement of your child. You also must take your leave in a continuous block unless your employer agrees to grant intermittent leave.
Important Definitions
Several terms should be defined so that you can understand the types of relationships that might qualify you to take leave.
Parent – Your parent includes your adoptive, biological, foster parent, or stepparent. It also includes any other person who has stood in loco parentis to you when you were a child. However, it does not include your in-laws.
Child – Your child includes an adopted, biological, or foster child, legal ward, stepchild, or a child for whom you stand in loco parentis who is younger than age 18. It also includes a child who is 18 or older who has a physical or mental disability that makes him or her incapable of taking care of himself or herself at the time your FMLA leave will start.
Spouse – Your spouse is your husband or wife and includes a same-sex spouse. If you live in a state that recognizes common-law marriage, it would also include your common-law spouse. However, New Jersey does not recognize common law marriage.
In Loco Parentis – You stand in loco parentis if you provide daily care or financial support for a child. You can be entitled to take FMLA leave to care for a child to whom you stand in loco parentis even if you are not biologically related to the child. You can also take FMLA leave to care for a person who stood in loco parentis to you when you were a child.
Requesting FMLA Leave
You have to notify your employer of your need to take FMLA leave. If you know well in advance that you will need to take time off from work, you must give at least 30 days’ notice to your employer. For example, if you are pregnant, you will need to give your employer notice that you want to take FMLA leave at least 30 days before your due date.
If you learn that you need to take leave under the FMLA less than 30 days before the leave is needed, you must notify your employer as soon as possible. In most cases, this means notifying your employer about your need on the day you learn that you need to take time off from work or the following day.
If your need to take time off from work unexpectedly arises, you are required to inform your employer as soon as possible. For example, if your child is seriously injured in a car accident, you must inform your employer that you need to take FMLA leave. Follow the normal procedures for calling off from work unless you are receiving emergency treatment for your own injuries.
When you ask to take leave, you should provide enough information to your employer so that your employer can determine that your leave might be covered by the FMLA. If your condition has already been approved for leave, and you will need to take additional leave for it, you should include that information in your request. For example, if you will need to take intermittent leave to attend ongoing physical therapy appointments, be sure to explain that to your employer in your request.
Talk to the Attorneys at Swartz Swidler
If you have questions about your rights under the FMLA or have had your leave request denied, you should speak to the employment lawyers at Swartz Swidler. Call us today for a free consultation at (856) 685-7420.
