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How Does the FMLA Work?


The Family and Medical Leave Act became effective in 1993, with the idea of helping balance workplace demands with the medical needs of employees and their families without the threat of job loss.

You should know that your employees who are eligible are entitled to take up to 12 weeks of unpaid leave during a 12-month period for their own serious health conditions or to care for an immediate family member who is ill. Employees also may use FMLA for "birth and bonding," an extended parental leave for the birth or adoption of a child, and for bonding with a new foster child.

Companies must maintain the same group health benefits during an employee leave as if the employee continued to work.

Workers may be caregivers to an immediate family member, which, according to federal law, includes parents, spouses and children. Some states stretch the definition to include a domestic partner, a parent-in-law, a sibling and a grandparent, and so it's important to check your state's labor laws.

Other provisos:

  • Your employee must have worked for at least 12 months prior to requesting the leave —and logged 1,250 hours in those 12 months. For eight-hour days, that translates to approximately 156 days.
  • For your company to be a part of FMLA, you must have at least 50 employees who work within 75 miles of your location. Check with your state's provisions as well.
  • You may opt for requiring that employees use up their paid leave first and then FMLA leave. Employees may elect to use accrued time first — paid leave doesn't count when calculating the 12 unpaid weeks workers are entitled to. Most employees will want to use up their paid maternity leave first before taking FMLA time. There are obvious financial benefits — losing pay entirely would be an issue for most people.
  • It's not written into law that employees always must provide proof for the reason they need to take leave, but if you want it, employees must obtain certification from a health care provider. The Department of Labor website states that an employer should request certification at the time the employee requests leave or within five business days. After that, employees are allowed at least 15 calendar days to obtain proof. You may contact the health care provider for authentication or clarification, but you're not allowed to ask providers for additional information beyond what is contained in the certification form.
  • You're required to restore the same job your employee had before the leave. According to the Department of Labor website, "an employee must be restored to the employee's original job or an equivalent position with equivalent pay, benefits and other terms and conditions of employment."
  • Under FMLA, employees may take up to 26 weeks of leave in a single 12-month period to care for a member of the military. This includes a covered service member's spouse, child, parent or the nearest blood relative who has been granted legal custody of the injured service member. A covered service member is someone in the regular forces or the National Guard or Reserve Armed Forces who was on active duty or was called to active duty in support of a contingency operation.

All public agencies must follow FMLA rules, including state, federal and local employers, as well as schools. For private employers, FMLA applies to those employers who employed 50 or more employees for at least 20 workweeks during either this year or the previous year.

FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons, while accommodating the legitimate interests of employers. Make sure you're aware of the terms.


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Kim & Lee
Kim & Lee, LLP
2305 W. 190th St. Suite 100
Torrance, CA 90504
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