Family and Medical Leave

Since the COVID-19 pandemic, the issue of unpaid and paid leave has become a topic of debate among workers, employers, and legislators around the country. The federal government has held off on mandating paid medical leave for private employers, although some states have started requiring it.

At present, the only mandated federal law providing medical leave is the Family and Medical Leave Act (FMLA). This federal law applies in all states for all covered employers. It grants eligible employees up to 12 weeks of unpaid leave per year. There are requirements that employers and employees must meet to qualify for this leave.

Eligibility Requirements

The U.S. Department of Labor (DOL) has attempted to make the FMLA available to the greatest number of workers possible. FMLA leave is flexible enough to use with other employer leave policies.

Covered Employers

Covered employers must comply with all FMLA regulations. A covered employer is:

• Any private business with 50 or more employees for at least 20 weeks during the year
• All public agencies, regardless of the number of employees
• Local educational agencies, including school boards and private schools, regardless of the number of employees

Eligible Employees

An eligible employee is any worker:

• Who has worked for a covered employer for at least 12 months
• Has at least 1,250 hours of work during those 12 months
• Works at a location where the employer has at least 50 employees within a 75-mile radius

The last requirement concerns small businesses and franchisees that are owner-operated. An employee might work at a convenience store with only 20 employees but still be eligible for FMLA leave because the franchise owner has three such stores within a 50-mile radius.

Independent contractors do not qualify for FMLA leave. Employers should ensure they have not misclassified workers when granting or denying leave based on an employee's status.

How FMLA Works

Eligible employees working for covered employers can take up to 12 weeks of job-protected unpaid leave during any 12-month period. Military caregivers may request up to 26 weeks of unpaid leave during the 12 months. Some of the requirements include:

• They must return to the same job or substantially similar work when their leave ends
• Employers may not fire workers while they are on leave
• Their employer is not required to pay them while they are on leave. Employers may require workers to use paid leave at the same time they use FMLA leave

FMLA covers a few specific situations. A worker must have a qualifying reason for requesting leave. The reasons allowed for FMLA are:

• The birth of a child and time for bonding with the infant
• Adoption of a child or placement of a child in foster care
• Care for a serious health condition of an immediate family member (parent, child, or spouse)
• Care for the employee's serious health condition
• Military-related situations, including care for a returning veteran with a serious injury or reasons related to a service member's overseas deployment

Intermittent Leave

FMLA allows employees to use FMLA leave intermittently or on a reduced schedule basis. For instance, an employee with a chronic medical condition may use FMLA for periods they are unable to work, such as chemotherapy. Employees may also divide their FMLA, using the 12 weeks two or three weeks at a time. The employee should give enough notice that the employer can reasonably expect the use of FMLA leave.

The employer can request medical certification when an employee requests FMLA leave.   If the employer requests medical information, they must give the employee enough time to produce it. The DOL recommends at least 15 days for such a request.

What Is a Serious Health Condition?

We all know someone who gets sick and must stay in bed for a week, moaning and sipping weak tea. That does not meet the FMLA's definition of a serious health condition. The official definition of a condition that qualifies for FMLA benefits is:

• One that requires an overnight stay in a hospital or healthcare facility
• One that incapacitates the patient for more than three days and includes follow-up medical treatment, such as prescription medicine
• Chronic conditions that cause occasional incapacitation and which require health care treatment at least twice a year

COVID-19 may meet the definition of a serious health condition if an employee has symptoms, but not if the employee is asymptomatic.

What FMLA Does Not Cover

The listed situations are the only ones where FMLA applies. An employee may need time off for other medical reasons, but FMLA does not cover them. These include:

• Time off to care for other family members: Siblings, in-laws, and other dependent adults and children are not immediate family members.
• Minor medical issues: FMLA does not cover colds, flu, sprained ankles, and other problems that keep workers home but don't require medical intervention. There may be good reasons for workers with the flu to stay far from the office, but they are not entitled to medical leave.
• Wellness leave: Many employers offer workplace wellness programs. The health benefits of time away from work are well known, but they are not covered by FMLA.
• Healthy child care: Parents may need to stay home to take care of the children if a school locks down because of COVID-19 or some other illness. FMLA does not cover staying home to take care of healthy children.

Small business owners have the option to provide unpaid leave in these and other emergencies. Nothing prevents businesses from granting unpaid leave to any worker at any time, but they are not required to.

State Family and Medical Leave

As of 2023, thirteen states and the District of Columbia have mandatory paid family and medical leave acts. Eight other states have voluntary, state-sponsored insurance plans. A handful of states have added school-related parent leave. This benefit allows parents a few hours each month to attend parent-teacher conferences, school events, or other child-related activities.

State laws may apply to businesses too small for FMLA. For instance, California's paid sick leave law covers small employers with more than one employee. Colorado covers businesses with more than 16 employees.

Individual cities, counties, or municipalities may also require businesses within city limits to provide workers with paid time off. Los Angeles, Chicago, and New York City all have employee leave requirements.

Getting Legal Help

Family and medical leave laws are complex. Small business owners must know what employee benefits apply in their jurisdiction. If you and your workers have questions about the Family and Medical Leave Act, consider seeking legal advice from an employment law attorney in your area.