In 1993, Congress enacted the Family and Medical Leave Act under which an employer must give an employee time off for certain family and medical reasons. An employer can be sued for damages if he doesn’t comply or retaliates against an employee for exercising rights under the act.

The law only applies to businesses employing at least 50 people during 20 or more calendar weeks in a year. Since the act defines employers to include public agencies, it applies to both private and governmental employers.

Likewise, not all employees are entitled to the benefits. To qualify, an employee must (1) be employed for 12 months and (2) have worked at least 1,250 hours during that period, or about 25 hours per week.

Satisfying these criteria entitles an employee to take up to 12 work weeks of leave during any 12-month period. The leave can be taken intermittently or on a reduced work schedule if medically necessary. Otherwise, the time is only permitted with the employer’s prior consent.

Leave is entitled under four specific circumstances: (1) To care for a son or daughter following birth; (2) to care for a son or daughter following adoption or foster care; (3) to care for a spouse, son or daughter who has a serious health condition; and (4) to recover from a serious health condition. If any of these circumstances is planned or foreseeable, the employee must give the employer at least 30 days advance notice. If that’s not possible, then the employee must give as much advance notice as the circumstances allow.

Serious condition

The term “serious health condition” includes any illness or injury — or physical or mental condition — that requires inpatient care. It also includes situations involving the “continuing treatment of a health provider.”

These situations can vary in complexity. Incapacity brought on by pregnancy or prenatal care is one example. An incapacity that exceeds three days and requires the treatment of a physician on two or more occasions is another. This term also includes treatment for chronic serious health conditions and multiple treatments for an incapacitating condition.

Whether a specific condition qualifies as a serious health condition is determined by various factors: the nature and severity of the impairment, duration of the impairment and the disabling consequences arising from the impairment.

An employer may contest a worker’s request for leave because of a serious health condition by requiring an independent physical examination. If requested, the employee must cooperate in the examination and evaluation process. Employers should exercise this right before they disallow a request for leave — especially in close cases. Employers who don’t exercise this right before disallowing a request lose that right. In such cases, the employer will be stuck with the certification provided by the employee’s physician.

To pay or not

Some confusion apparently exists on whether an employer must continue to pay an employee while on leave. Under the act, the employer is simply required to give an eligible employee leave without any penalty or retaliation. Accordingly, an employer is not required to pay wages or salary during an employee’s leave. However, the employer must continue to provide the same employment benefits that existed before the leave.

Be serious

Employers should take these entitlements seriously by posting them in a conspicuous place. They also should adopt a policy that helps employees understand the entitlements.

I also recommend that employers adopt and utilize a family leave form to obtain valuable information with respect to an employee’s history and medical condition. The information helps doctors who do independent medical evaluations and is handy if an employer should ever be sued under the act.



Printed in Four Rivers Business Journal (Paducah Sun), February 2009.