Family and Medical Leave Act

In this section

• Eligibility
• How leave under the FMLA may be taken
• Military families
• How the FMLA overlaps with the ADA
• Enforcement
• Resources

The federal Family and Medical Leave Act requires that employers grant an eligible employee who has a serious health condition up to 12 weeks of unpaid leave every year.¹

Employers must also grant the same leave to eligible employees with a spouse, or a son, daughter, or parent who requires care for a serious health condition.² The same rights are granted for the birth or adoption of a child.

Employers with 50 or more employees must offer Family and Medical Leave.

Eligibility

In addition to meeting the requirements regarding a serious health condition, to be covered under the FMLA, an employee must have:

• been employed by the employer for more than one year;
• worked 1,250 hours in the prior 12 months; and
• work at a worksite with 50 or more employees within a 75-mile radius.

How leave under the FMLA may be taken

An individual may take leave under the FMLA either continuously or intermittently. In other words, he or she can either take up to 12 weeks off or may spread the time off during any 12 month period of a year.

A parent whose child is injured in an automobile accident may take four full weeks off to care for the child initially and then may work at reduced hours for the remainder of the year using time that adds up to the remaining eight weeks of leave.

Military families

There are also specific provisions for employees requesting leave to care for certain relatives who are members of the Armed Forces.

The FMLA was recently amended to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

The NDAA also permits an employee to take FMLA leave for “any qualifying exigency . . . arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”

Additional information and a copy of Title I of the FMLA and a copy of the final regulations implementing these new rules, are available from the Department of Labor

How the FMLA overlaps with the ADA

Definitions of serious health and condition and disability not the same

A serious health condition is not the same as a disability under the Americans with Disabilities Act.

A serious health condition is an illness or injury that requires either “(1) inpatient care in a hospital, hospice or residential medical care facility, or (2) continuing treatment by a health care provider”. This definition includes many short-term or acute conditions that do not meet the definition of a disability under the ADA (an ADA-defined disability requires that a condition last at least 12 months to qualify as a disability and that it impair the individual’s ability to perform major life activities).

A person with a broken arm may have a serious health condition, but may not meet the definition of a disability under the ADA if the arm heals within a year and does not substantially limit his or her ability to perform major life activities.

Individuals covered under both the ADA and the FMLA

The question of whether or not an individual is covered under the FMLA and the ADA must be determined on a case-by-case basis. In some cases, there will be individuals who may be covered by both.

Therefore, it is possible that an individual may receive up to 12 weeks of leave under the FMLA and then require reasonable accommodations when he or she returns to the workplace, including additional leave or schedule modifications.

For example, a person who has had a stroke or spinal cord injury requiring hospitalization and subsequently has a substantial limitation in walking would have both a serious health condition and a disability.

Enforcement

The FMLA is enforced by the Department of Labor, not the Equal Employment Opportunities Commission (EEOC). The statute is available on the Department of Labor’s website.

The final regulations may also be found on the Department of Labor’s website.

Resources

The United States Equal Employment Opportunities Commission provides more information on the following:

• The Family and Medical Leave Act
• The Americans with Disabilities Act
• Title VII of the Civil Rights Act of 1964

The Massachusetts Commission against Discrimination provides this resource for more information: Guidelines: Employment Discrimination of the Basis of Handicap, Section on Interrelated Laws.

¹ (FMLA), 26 U.S.C. S 2601 et seq.

² For more information on who is considered a spouse, son, daughter or parent, see the FMLA regulations at 29 C.F.R. § 825.122.