The Family and Medical Leave Act was enacted by Congress over 25 years ago to require employers to provide leave to employees without threat of job loss or loss of health benefits. Yet, even after all those years, some employers still don’t apply the law correctly.

The Act requires covered employers to provide up to 12 weeks of unpaid leave within a 12-month period for the following reasons:

• the birth of a child or to care for the newborn child in his or her first year of life;
• placement with the employee of a child for adoption or foster care and care for the child in the first year of placement;
• the provision of care, due to a serious health condition, for a spouse, child, or parent;
• an employee’s own serious health condition that renders him or her unable to do the essential functions of the job; and
• a qualifying need arising from the employee’s spouse, child, or parent being deployed on qualifying military active duty.

The Act also provides for 26 weeks of military caregiver leave within a 12-month period where the employee is the servicemember’s spouse, child, parent, or next of kin.

If the employer already has in place a system of paid leave for circumstances such as those covered by the Act, the employer can choose to count the paid leave toward satisfying the legal requirements. It must, however, follow certain steps in doing so. In all cases, employees must comply with the employer’s normal steps for requesting leave from work. At the conclusion of leave, the employee must be restored to his or her former position or one of equivalency in terms of pay, benefits, and other terms and conditions.

There are some requirements for employees to be eligible for the leave. Specifically, one must work for a covered employer, which is a private entity with 50 or more employees; a public entity such as a municipal, state, or federal agency; and a public or private elementary or secondary school. An employee must have worked for the employer for at least 12 months and must have worked at least 1,250 hours during the 12-month period immediately preceding the period of leave. The 12 months of work, however, need not have been consecutive.

In addition to the above-noted requirements, the health condition of the employee or family member must meet the “serious” standard. While there is no list of health conditions that qualify, federal regulations and court decisions indicate that to be considered serious, the condition must require inpatient care or continuing medical treatment. Courts have stopped short of finding that any chronic condition requiring continuing treatment qualifies as a serious health condition. Given the uncertainty of whether or not a health condition entitles one to the protections of the Family and Medical Leave Act, there are many opportunities for employers to come down on the wrong side of the law.

At Tipp & Buley, we have over 55 years of collective experience in employment-related legal matters. If you’ve been denied your rights under the Family and Medical Leave Act, please call us. We’ll put our experience to work for you. Call 406-812-7634 or visit us online to set up a one-on-one consultation.