If you work at a job and a sudden life event comes up, you’ll need to take some time off, and one option you might pursue is FMLA. Short-term leave such as sick days or your vacation time can be used first, but some situations call for more long-term use of leave.
If this is your case, you might use the Family Medical Leave Act (FMLA) to take more time off due to a variety of family-related issues. This gives you the opportunity to take up to twelve workweeks of leave in a 12-month period for the following circumstances:
- The birth of a child or caring for a newborn within one year after the birth of that newborn
- To care for a child, parent, or spouse who has a major health condition
- The placement with the employee of a child for foster care or for adoption, or care of that child within one year of placement
- Any health condition that makes the employee no longer able to perform their essential job functions
- Any serious issue associated with the employee’s son, daughter, parent, or spouse’s covered active duty military status
Additionally, up to 26 workweeks of leave is also allowed under one 12-month period to care for a service member who has a serious injury or illness so long as that eligible employee is the servicemembers parent, daughter, son, or spouse. This is known as military caregiver leave. Most people do not anticipate taking FMLA and only start to learn about it after a serious issue has come up.
In the wake of dealing with that existing stress of a health condition for a family member, it’s hard to sort out what’s allowed and what’s possible under FMLA. It’s important to realize that not every single employee is entitled to FMLA leave. Knowing the specific facts about the employer in question and the employee’s recent work history with that employer can help to determine if the leave is applicable.
As an employee today, you may have questions about state and federal regulations and programs for protection. Understanding who is covered under FMLA often means doing advanced research on your own to ensure that you are clear about your FMLA protections. This is particularly true if you plan to file a lawsuit about an alleged violation of FMLA. Certain family members could be covered and this can enable you to take advantage of these legal protections when you have a qualifying circumstance.
Who Are Covered Family Members?
Covered family members under the Family and Medical Leave Act are an employee's son, daughter, spouse, or parent per FMLA regulations. When it comes to defining the term spouse this means a wife or husband, including those partners in same sex marriages. Son or daughter refers to an adopted, foster, or biological child in addition to a legal ward, a stepchild, a child of a person who is serving in loco parentis, a person who is either 18 or older but also incapable of self-care or is under age 18. Parents are defined as adoptive, biological, foster, or step mothers or fathers and any other person who served in loco parentis to the employee when that employee was a minor.
Which Family Members Are Not Covered by the Federal FMLA?
Family members who are not covered under the federal FMLA protection include grandparents, in-laws, siblings, and other family members except in those situations in which those individuals stood in loco parentis to the employee when they were a minor. Non-family members could also be classified as having stood in loco parentis. Certain states, however, do offer broader definitions of family members, meaning more generous coverage under FMLA leave. Certain states, for example, can include grandparents, siblings, domestic partners, and others in the definition of “family member” for the purposes of family medical leave. It is important to understand when looking for who counts under FMLA to review state family leave laws for compliance.
Service Member Protections
The FMLA also empowers employees the ability to use leave for a veteran with a serious injury or illness or a covered service member if the employee is the son, daughter, parent or spouse, or next of kin of the veteran or service member. Next of kin refers to the nearest blood relative beyond the covered service member's parent, son, daughter, or spouse in the following order of priority.
· Blood relatives previously awarded legal custody of that covered service member through statutory provisions or court decrees.
· Sisters and brothers
· Aunts and uncles
· First cousins except in those situations in which the service member purposefully designated another blood relative in writing as their nearest blood relative.
As you can see the circumstances for qualifying for FMLA are quite clear but it is important to understand that when an employer violates the FMLA leave laws, you could have grounds for a lawsuit. Figuring out who is covered under FMLA is important.
Who Is Eligible to Use FMLA Leave?
In order to take FMLA leave you first must work for what is known as a covered employer. Private employers must have at least 50 employees to be covered under FMLA to be classified in this manner. Those private employers who have fewer than 50 employees are not covered by FMLA but could be covered by medical leave laws or state family laws. Elementary and secondary schools and government agencies are all covered by the FMLA no matter how many employees work there. In order to take FMLA leave you will need additional criteria even after working for a covered employer. Not every person who works under a covered employer is eligible. There are three primary criteria you must meet, including:
· You must have been with your employer for a minimum of 12 months even if these are not 12 months in a row. But you cannot have a break in service that lasts more than 7 years because you will not be able to count the employment period prior to the 7-year break.
· You must have worked at least 1,250 hours in the 12 months before you take leave for that employer which is usually around 24 hours per week.
· You must work at a location where the employer has at least 50 employees within 75 miles of your worksite. You will not be eligible to take FMLA leave, for example, if the employees are spread out and there are not 50 employees within 75 miles of where you work.
Special Eligibility Requirements for Airline Flight Attendants and Flight Crew
As a result of the non-traditional work schedules typically used by flight crew members and flight attendants, you meet the hours of work requirement if you have worked or have been paid at least 60% of your applicable monthly guarantee and have worked or been paid for a minimum of 504 hours not including vacation, medical, sick leave or personal commute time.
What to Do if You Think FMLA Leave Rights Were Violated
Unfortunately, you might find yourself in the position of having to argue with an employer who is not giving you your appropriate leave. They might be stating that you have not met the terms of employment in order to be qualified for this leave protection, and in these circumstances, it is best to empower yourself with the support of an experienced attorney. A lawyer can assist you with determining whether or not you do meet the grounds to receive the covered leave and can help manage the conversations with an employer.
You might just want to be able to use your leave rights as soon as possible, but if your employer is arguing with you and delaying your ability to take time off, this is a serious situation. You need to involve the support of an attorney who is familiar with these situations and someone who can handle these communications. Obviously you hope to return to this place of work, so you have a vested interest in keeping things as professional as possible while also getting your leave time. Sometimes it’s hard to communicate this and your knowledge of the law to an employer who has never managed an FMLA leave request before or for one who might know you’re entitled to it but doesn’t want to support you with it.
Having your own advocate minimizes the ongoing conflict and creates a roadmap for you to be able to get the help that you need. You’re certainly not on your own when it comes to managing an FMLA leave request; knowing who is covered under FMLA and clarifying that you’re protected is the first step, but it might not be the last thing you deal with in your case. Speak to an attorney today to verify that your understanding of who qualifies for FMLA is correct.