FMLA Rights Prior to 12 Months of Service
The Family Medical Leave Act, FMLA, was passed by the Clinton administration in 1993. Employees must meet specific service requirements including a 12-month service requirement to take family medical leave. FMLA provides guidelines to employers who grant employees non-FMLA leave prior to them reaching the service requirement. Some states also have a separate FMLA requirement; however, the federal FMLA law applies when the state version of the act carries less benefits.
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What is FMLA?
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The Family Medical Leave Act requires employers with 50 or more employees, within a 75-mile radius to provide qualified employees with serious illnesses or qualifying circumstances with 12 weeks of unpaid leave. During this leave, which may be taken intermittently or all together, the employer must protect the employee's same position or grant an equal position of employment upon return from leave. Employees may take leave to care for themselves or for close members of their families including children, spouses and parents.
Who Qualifies for FMLA?
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Employees applying for FMLA must meet certain requirements. Qualification for leave is based on hours worked in the previous year and the number of months worked. Employees who have worked at least 1,250 hours during the previous 12 months qualify for FMLA leave. In 2009, the FMLA was revised, clarifying rules for employees who have not worked the required 12 months. Employees taking non-FMLA leave, which extends after the required 12 months of service, can not be charged retroactively for FMLA leave. In other words, the FMLA clock does not start ticking until the 12-month service requirement has been met, regardless of the amount of non-FMLA leave granted to the employee prior to that 12 month anniversary.
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What Conditions Qualify Under the FMLA?
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Employees with a serious health condition which has been treated by a doctor may qualify for FMLA leave. They may also qualify for leave while caring for a parent, spouse or child with a serious medical condition that has been treated by a doctor. Birth of a child, adoption and the foster care of a child also qualify an employee for leave. FMLA provides separate provisions for active-duty service members, the spouse or parent of an active-duty service member. In these cases, qualified employees can be granted up to 26 weeks of leave in the case of illness of an active-duty service member.
Considerations
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Employers are not required by law to grant leave to employees who do not qualify for FMLA. There are pros and cons to granting non-FMLA leave. Excellent employees sometimes get sick during their first year of employment. Employers who do not grant them leave risk losing them as employees. However, because FMLA is not retroactive, non-FMLA leave in the first 12 months of service does not affect the additional FMLA leave, which is accrued at the 12-month service anniversary. This can result in excessive absence and become a burden to the proper functioning of daily business.
Employers granting FMLA should take care to carefully follow the Department of Labor guidelines on FMLA and to track FMLA leave. Intermittent leave can be taken in very small increments, including being minutes late to work because of a serious health condition. Leave should be granted immediately upon obtaining a certified physician's statement from a qualifying employee.
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References
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