Under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., employees have the right to take up to 12 weeks of unpaid leave for a serious illness, to care for a seriously ill family member, or to care for a newly born or adopted child.
Employers must return an employee who takes leave to the same or an equivalent job. Employers cannot interfere with an employee’s right to leave and they cannot discriminate or retaliate because an employee takes or seeks to take leave.
You Can Take Intermittent Leave
FMLA leave can be taken all at once or on an intermittent basis as needed by the employee or their family member. For example, an employee can use a couple hours of FMLA leave twice a week in the morning to take their child or spouse to recurring physical therapy appointments after an accident, or to follow-up doctor’s appointments after a surgical procedure.
FMLA Cases Are Complex
Cases involving FMLA leave can be complex because they often overlap with the rights afforded to employees by the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Some courts have even held that the ADA should be interpreted to provide additional leave beyond that specified in the FMLA as a form of reasonable accommodation.
Some states also provide benefits that go beyond those afforded by the federal FMLA. For example, in the District of Columbia, employees can take up to 16 weeks of leave.
Benefits for Military Families
The FMLA provides additional benefits for the families of service members. Spouses, children, parents, and next of kin of service members may be entitled to up to 26 workweeks of leave per year to care for a service member who is undergoing medical treatment for a serious injury or illness. The injury or illness must be one that was incurred in the line of duty or aggravated by service in the line of duty, and the condition must be severe enough that it may render the member unfit to perform the duties of their office, grade, rank or rating. The FMLA also covers the family of veterans for five years after their separation or retirement.
The FMLA also provides 12 weeks exigency leave for the immediate family of service members in the event that a service member has been notified of an impending call or an order to deploy to a foreign country. Family members may also take leave if a member of the National Guard or Reserves is called to active duty in support of a contingency operation. The service member’s active duty orders should identify whether they are serving in support of a contingency operation. To qualify, the need for leave must be directly related to the service member’s deployment or call to duty.
The FMLA applies to employees who have worked at least 1250 hours for their employer in the last 12 months, and employers with at least 50 employees in a 75 mile radius.
The FMLA has a generous statute of limitations. Claims must be filed within two years after the last action that the employee believes was a violation, or three years if the violation was willful.
Note, however, that the procedures for government employees are different and may be governed by much shorter deadlines associated with grievance processes and merit systems appeals. These deadlines can be a short as 15 days.