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Five Things You Might Not Know About FMLA


The Family and Medical Leave Act (FMLA) was enacted in 1993 during the Clinton administration. The act was designed to allow workers to take time off work for medical or personal needs without fear of losing their employment. Many workers use the FMLA to take a hiatus from work to care for their families or newborn babies since the U.S. government does not offer paid maternity leave. Various states including California have passed their own Family Medical Leave Acts which go above the federal FMLA or supplement gaps in the FMLA. This article does not address state law.

If you are considering taking time off work for personal or medical reasons, then it is essential to understand the various components of the FMLA and what it covers.

Who Is Eligible?

The FMLA allows workers to take up to 12 weeks off work within a 12-month period. Workers are allowed to take time off for various reasons, including pregnancy, the birth of a newborn, matters related to military obligations, and serious medical reasons as defined by the Department of Labor, whether it involves the worker or a family member.

To qualify, employees must work for a covered employer for at least 1,250 hours during the 12 months before they take leave, though the 12 months do not have to be consecutive. Qualifying employees will also work for an employer who employs at least 50 people at the location where the employee works (or within 75 miles of that location).

Who Is Considered “Immediate Family”?

Every state has its own definition of what constitutes an immediate family member. In California, the definition is rather broad. In this state, the immediate family includes:

  • Spouse
  • Domestic partner
  • Cohabitant
  • Parent
  • Stepparent
  • Mother-in-law
  • Father-in-law
  • Sibling
  • Half-sibling
  • Stepsibling
  • Brother-in-law
  • Sister-in-law
  • Children
  • Stepchildren
  • Daughter-in-law
  • Son-in-law
  • Great grandparent
  • Grandparent
  • Grandchildren
  • Aunt
  • Uncle
  • Niece
  • Nephew
  • First Cousin

Your Employer Does Not Have To Let You Return To Your Old Role

Although the FMLA protects your employment, that doesn’t necessarily mean you will get your old position back when you return to work after personal or medical leave. The FMLA requires your employer to place you either in your former position or in a similar role when you return. If your employer reinstates you in a new role, it should pay about the same as your former role and should be on a similar level in the company.

There is one exception to this rule, and it applies to employees who are among the top 10% earners within the company. If you are a key employee, you are not guaranteed a similar-paying, similar-level role when you return. If you are a top earner at the company, you should discuss the situation with your employer before taking leave.

It’s also worth noting that if there is a general layoff while you are on leave, and you would have been laid off had you not taken leave, your employer isn’t obligated to continue your benefits or reinstate you when you are ready to return to work.

You Can Be On Other Leave And Become Eligible For FMLA Leave

To begin FMLA leave, you must have worked for your employer for at least 12 months before the start date of your leave. If you are on another non-FMLA leave when you become eligible for FMLA leave, then any part of the non-FMLA leave that you take for FMLA-related reasons will be considered part of your FMLA leave.

Your Employer Cannot Refuse To Let You Take FMLA Leave Or Require You To Return Before Ready

As long as you furnish your employer with adequate notice and proof, they must allow you to take FMLA leave. Your employer also cannot require you to return from leave before you are ready. However, the employer can require you to provide documentation including medical information before they authorize your leave. Failure to properly document your request for leave and be used to deny FMLA leave.

How WCZ Could Help

If you have questions about taking FMLA leave, or if you believe your employer has violated your rights under the FMLA, contact the Riverside employment attorneys at Wagner Zemming Christensen, LLP today for a free initial consultation.

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