Leaves of absence requirements are among the most vexing part of HR administration for most employers. The Family and Medical Leave Act (FMLA) and related state law requirements cause practical headaches and risks of litigation for the unwary. Through a four part series, we will try to demystify family and medical leave obligations and provide a practical guide for compliance. More detailed information is available on our website.

What does FMLA provide?

FMLA provides eligible employees with up to twelve workweeks of unpaid leave within a twelve month period. Family members of qualified servicemembers may receive more unpaid leave – up to twenty-six workweeks in a twelve month period. If a husband and wife are employed by the same employer, they may be limited collectively to twelve weeks of leave within a twelve month period, depending upon the reason for leave.

What effect does paid leave have on FMLA?

If the employer offers paid leave, and the employee’s reason for leave would qualify under FMLA, in most cases the employee or the employer may substitute paid leave for unpaid FMLA leave. However, the employee is entitled to full FMLA protections for both the paid and unpaid parts of the leave. Most employers require employees to exhaust paid leave before FMLA continues without pay.

Which employers are covered under FMLA?

The statute applies to employers who have 50 or more employees for each working day during 20 or more workweeks in the current or preceding year. The statute also covers public agencies and public and private elementary and secondary schools, regardless of the number of employees.

Which employees are covered by FMLA?

Employees must (1) work for an employer covered under the statute; (2) for at least a cumulative twelve months; (3) and have at least 1,250 hours of service during the twelve month period immediately before the leave. The employee must also work at a location where at least 50 employees are employed by the employer within 75 miles of the location. So employees in a remote outpost of a large employer may not be covered by FMLA. There also are special rules for certain federal officers and flight attendants.

When can an employee take leave under FMLA?

FMLA provides continuous (rather than intermittent) leave for:

(1) childcare after the birth of the employee’s child;

(2) care for a child placed with the employee for adoption or foster care;

(3) care for the employee’s spouse, child, or parent with a serious health condition;

(4) the employee’s own serious health condition;

(5) a qualifying military exigency; or

(6) care for an injured servicemember (military caregiver leave).

What is a serious health condition?

The definition is complicated. A “serious health condition” includes an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. A detailed discussion of what constitutes “inpatient care” and “continuing treatment” is found here.

What is a “qualifying military exigency”?

There are seven kinds of “qualifying military exigencies” that are found here. All involve responding to military obligations, where the employee is the servicemember or a civilian directly involved with a servicemember.

What is military caregiver leave?

This leave is available to an employee to care for an immediate family member who has a disability, injury or illness incurred in the line of duty.

What is intermittent leave?

In some situations, an employee may qualify for leave taken in separate blocks of time due to a single reason or for a reduced work schedule if: he or she has a serious health condition; must care for a spouse, child, or parent with a serious health condition; faces a qualifying military exigency; or must care for an injured servicemember. Leave is tracked in small increments of less than one hour.

How is intermittent leave scheduled?

If leave is due to planned medical treatment, the employee is supposed to made a reasonable effort to schedule treatment so as not to disrupt unduly the employer's operations. As a practical matter, the employer cannot effectively schedule such leave. The employer may temporarily transfer an employee on intermittent leave to a position with similar pay and benefits.

What's next in this series?

In the second installment of this series, we will cover the process for requesting leave, granting or denying leave, employee rights during the leave, and reinstatement rights after the leave. The third installment will explain Washington’s family and medical leave obligations and the relationship between FMLA and state law leave requirements. And the final installment will provide practical tips for family and medical leave of absence compliance.

If you have questions about questions about FMLA or any other employment law issue, please contact the Foster Pepper Employment and Labor Relations Practice Group.