Employees are often wrong about the FMLA.  

As employment lawyers we often talk with people (clients, friends and family alike) that think the Family and Medical Leave Act (“FMLA”) does things for them that it doesn’t.  Employment lawyers on both sides of bar agree that the Act can be one of the most nuanced and confusing employment statutes out there.  So it’s no surprise that people who do not work with the statute every day do not understand it. People often assume the Act gives them things it does not.  At the same time, many employees are not aware of some of the Act’s most helpful provisions.

First, the bad news:

  1.  The FMLA does not cover everyone.  The FMLA only protects workers in offices or locations with fifty or more employees in a 75-mile radius.  So before assuming you’re covered, count your co-workers.

You also will not be eligible for FMLA protections unless you have worked at the job for at least one year and during that one year have worked at least 1,250 hours.  This generally means that part-time or seasonal workers will be out of luck.

2. The Leave is unpaid.  This is the one that always elicits gasps from our clients.  But it’s true.  Congress created a statute which entitles some employees to time off but assumed those employees, you know, didn’t need get paid.  The United States is the only rich country not to offer some kind of paid sick time.  Some companies offer short-term disability insurance which may provide some income during a leave but the FMLA and short-term disability insurance have nothing to do with one another.  The FMLA is a federal statute while short-term disability insurance is coverage that your employer may or may not choose to provide.  It is important to keep those straight.  Also, it is possible that you may qualify for one but not the other.

3.The FMLA is not forever.  Like all good things, FMLA time must end.  The FMLA only provides employees with 12 weeks of leave in a 12 month period of time.  After the 12 weeks are up, the statute does not give you job protection and your employer can, absent other legal protections, fire you if you cannot return to work.

4.You can be terminated while on FMLA leave.  While the FMLA makes it clear that an employee cannot be terminated because he or she took leave that does not mean that the protection is absolute.  For instance, if a company is undergoing layoffs and your position would otherwise be eliminated your employer can still eliminate your position even though you are on leave.  Likewise, if your employer discovers while you are leave that you engaged in some sort of misconduct before the leave you may be terminated.

Now some good news:

5.The FMLA isn’t just for you!  The FMLA gives qualifying workers time off to care for themselves, their minor or adult disabled children, spouses and parents.

6. FMLA time can be used intermittently.  You can use FMLA in chunks as small as 1/4 of an hour.   For employees, this flexibility is priceless.  Many of our clients undergoing cancer treatments do not need (or want) full-time off.  Instead, they may need to use their time intermittently for things like chemotherapy and/or radiation.  The Act enables them to do this.  The same is true for caregivers who may need just a few hours here or there to take children, spouses or parents to appointments.  In my opinion, the ability to take leave intermittently is the most valuable part of the Act.

7. Common ailments may qualify as serious health conditions.   A serious health condition is defined as a condition which requires in-patient care in a hospital, hospice or residential care facility or continuing treatment by a health care provider.  Continuing treatment is generously defined as  two or more treatments by a health care provider in 30 days or one treatment followed by a regimen of continuing treatment under the supervision of a health care provider.   So, if you, your child, spouse or parent comes down with even a relatively mild condition (i.e. influenza, bronchitis, sinus infection) which requires doctors visits and a treatment plan (think antibiotic regimen) then there’s a good chance you are covered.  Likewise, if your kid breaks his leg, your time off to care for him or take him to doctors visits is likely covered as well.  This part of the Act is inordinately helpful to working parents who may have exhausted their sick and vacation time but still need time off for the unexpected.

   The FMLA requires employers to inform employees of their rights to FMLA.  If you are in need of leave and believe you may qualify for the FMLA’s protections talk to your human resources person or a lawyer.  The leave is not automatically given.  An employee must qualify and apply for the leave.  Talk with your office manager or HR professional about how to do so.