Answers to Your Questions on Family Medical Leave Act.

Questions about federal FMLA policy are common and range across a wide variety of topics having to do with everything from what the leave can be used for, to what FMLA means by “family member,” to how an employee can qualify for FMLA leave. In this article, we’ll answer some questions about federal FMLA regulations.

FMLA Federal Regulations: Questions and Answers for Employees

Q: I’m married to a partner of the same gender. They’ve been very sick, and I’d really like to take time off to take care of them. Do FMLA federal regulations consider them to be my family member?

A: Sort of. Federal FMLA policy was changed a few years ago and now recognizes same-sex partners who are married in its definition of “spouse.” But here’s the caveat: this is only as long as the individual state in which you live and work recognizes same-sex marriage. For more clarification on this subject, check out your state’s additional leave of absence laws (State FMLA), if they have any. If your state has state specific leave regulations, then check to see if it recognizes same-sex domestic partners in its definition of family member. If so you may be job protected while on leave to take care of your partner. Regardless, if you live in a state that where same-sex partners can be legally married, federal FMLA protection will be available when on leave to care for your same-sex spouse. You should check with your employer or HR representative before taking leave.

Q: I’ve been working for my employer for 12 months, but those months aren’t consecutive. Can I still qualify for FMLA federal leave?

A: You could, since federal FMLA policy does not explicitly require that those 12 months be consecutive. Remember, there are other requirements aside from the 12-month stipulation that you will also need to fulfill in order to be considered eligible for leave. You’ll need to have performed labor for 1,250 hours in one year, to work for an employer who is covered by FMLA, and to either work for an employer who has had at least 50 employees working for him or her for at least 20 workweeks either this year or last year, or work within a 75-mile radius of such an employer. If you are not sure if you fit any one of these requirements, consult your employer or your HR representative. They’ll be able to help you.

Q: My son was injured while he was serving on active duty in the military. I’d like to take time off to be with him while he recovers. Will FMLA cover my leave of absence?

A: Yes. This type of time off is called Military Caregiver Leave. As long as you are an eligible employee (see the answer to the previous question for clarification on eligibility), FMLA will provide you with unpaid time off to take care of a veteran who has sustained a “serious injury or illness” while serving on active duty. The law has specific guidelines as to what constitutes a “serious injury or illness.” According to federal FMLA policy, the serious injury or illness must have either been incurred in the line of duty or be a condition that existed before their service and was aggravated by their activities in the military, and (1) rendered them unable to perform the duties that accompany their rank as a servicemember, (2) has received a U.S. Department of Veterans Affairs Service-Related Disability Rating of 50% or greater and is the reason why they cannot perform their duties, (3) is a physical or mental disability related to their military service that incapacities the servicemember and would continue to do so without treatment, or (4) be an injury that results in the servicemember’s enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers. An employee taking time off for Military Caregiver Leave can be granted up to 26 workweeks of leave in a 12-month period. This leave will not be increased even if the employee is taking Military Caregiver Leave to take care of two family members who served/are serving in the military and who are suffering from a serious illness or injury. And, an appropriate healthcare provider must certify this leave.

Q: I took two weeks of leave and my employer did not tell me that it counted as FMLA leave before I went. Instead, they told me that my leave was being counted as FMLA leave after I had returned to work. Can they do that?

A: This is a delicate situation. Usually, an employer cannot count FMLA retroactively; however, if they did not know the reason for the leave and it qualifies as a condition under which FMLA leave would be provided, then they are permitted to designate your time off as FMLA leave retroactively. They can only do this, however, so long as you are still on leave or no more than two business days after you’ve come back to work.

FMLA Federal Regulations: Questions and Answers for Employers

Q: One of my employees took some time off for maternity leave. Can I count this as FMLA leave?

A: Yes. Both maternity leave and time off due to a pregnancy-related disability are covered under FMLA federal regulations. Both qualify as a serious health condition. However, you must notify the employee that her time off is being considered FMLA leave in writing, and you must do so either while she is still absent from work or within two business days after she returns. Simply let her know that her leave qualified as FMLA leave, and be sure to give her to proper paperwork to fill out.

Q: An employee approached me about taking FMLA leave due to a medical issue, but I’m not entirely sure that he needs the time off. How can I get more information before making a decision?

A: There are a few ways to get more information. First, make sure that the employee is working with an objective, professional healthcare provider who is qualified to determine whether or not he or she needs time off from work to recuperate from a medical issue. Second, write down the employee’s specific job duties, and as that their doctor review these duties and use them as a guideline to determine whether or not the employee can perform his or her job. Do this by asking the employee to have their healthcare provider fill out a medical certification form. (A sample of this type of form is available on the DOL website.) The employee must have this form filled out and return to you within at least 15 days from the date you requested it.

The employer is permitted to ask an employee questions about the medical issues they want to take time off for. It may be best to have an HR representative who is trained in FMLA ask the appropriate questions. And remember, you cannot ask for an employee’s medical records, just the medical certification pertaining to the need for time off work from a healthcare provider.

 

 

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