Common Questions Regarding Family Medical Leave

by Christy Aumer, ISEA staff counsel

The Family Medical Leave Act of 1993, 29 U.S.C §§ 2601-2654, is a federal law that requires an employer to provide to an employee twelve weeks of unpaid leave in any 12-month period if any of the following circumstances affect the employee: 1) birth of a child and care of the newborn; 2) placement of a child for adoption or foster care; 3) care of a legal spouse, biological parent (or childhood guardian), or child with a serious health condition; or 4) care of self when the employee suffers from a serious health condition causing an inability to perform regular job functions.

The FMLA also extends protection to leave taken to care for a stepchild, but it is more restrictive with regard to the care of a parent. An employee is entitled to FMLA leave to care for a biological parent, but not a mother- or father-in-law.

The FMLA offers protection only for serious health issues. The statute defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves in-patient care or continuing treatment by a health care provider. Minor or temporary conditions are not covered.

An employee should attempt to give notice of his or her intent to take FMLA leave, if possible, and must use leave for the purpose intended. Courts have allowed the termination of an employee when FMLA leave was used for a reason other than the intended purpose. Taking other employment while on leave, vacationing, and traveling instead of caring for a seriously ill parent are just a few examples of improper use of FMLA leave.

The following are some common questions we receive from ISEA members:

1. Will my job and benefits be protected during the FMLA leave period?

Yes. When you return from FMLA leave, your employer must restore you to the same or an equivalent position. Your employer must maintain health care benefits at the same level and under the same conditions as if you were actively working.

2. Do I have to use vacation, sick, personal, family or emergency leave for any part of my FMLA leave?

Your employer may require you to use your accrued leave for any part of the FMLA leave period. You can elect to use your accrued paid leave that applies under your collective bargaining agreement or your employer's leave policy.

3. Will I be paid during my FMLA leave?

The FMLA does not require an employer to provide paid leave for any portion of the leave period. If eligible under a collective bargaining agreement or an employer leave policy, you may be able to use accrued vacation, sick, emergency, medical or personal leave up to the point it is exhausted.

4. What if the serious health condition continues beyond 12 months?

An employer is only required to preserve your position and health care benefits for the 12-month period.

5. Can I take FMLA leave to prepare for the adoption of a child?

You may take FMLA leave at the time the child is placed with you for adoption. The FMLA does not apply to pre-placement activities to process the adoption, such as travel and meetings at an adoption or government agency.

6. Can I take FMLA leave if it is my first year on the job?

Only employees who have worked for their employer for 12 months and have worked 1,250 hours during that period are eligible for FMLA leave. If an employee does not meet these requirements, the employer may limit leave to the extent of the employee's accrued sick and/or vacation time.
It is always our hope that our members are not affected by serious health concerns. However, if you or a member or your family becomes ill, you have valuable rights under the FMLA. Please contact your UniServ Director or ISEA Advocacy Services if you have questions about your rights to FMLA leave.

(taken from the Dec./Jan. 2006 ISEA Communique)