FMLA leave is available for four conditions:
- The birth of a child to the employee, regardless of whether the employee is the pregnant woman or the expectant father;
- The employee is adopting a child;
- The employee has a serious medical condition requiring leave; or
- For the employee to take care of a family member with a serious medical condition.
FMLA leave can be continuous or intermittent. If FMLA leave is requested for the childbirth or adoption, it must be continuous leave. If FMLA leave is requested for the employee’s serious health condition or a family member’s condition, the leave can be intermittent so the employee can break up the leave time as appropriate for the condition. After the leave ends, the employee is entitled to return to the same job at the same position, shift and wages, or a substantially similar job with the same benefits, pay and conditions of employment.
An employer can require certification of the condition. In the case of a serious medical condition of an employee or employee’s family member, the certification must be completed by a medical professional and must describe the condition. An employer can contest the condition exists or requires leave but the employer cannot arbitrarily reject leave or deny the certification. An employee failing to provide a complete certification form, if requested by the employer, will not be protected by FMLA. An employee also must provide notice to the employer of an upcoming need for leave if it is possible to do so. For example, a pregnant employee can inform the employer that childbirth is expected in a certain time period; however, an employee who has a heart attack cannot give prior notice.
FMLA leave is not paid leave, although an employer can chose to pay for leave time. Additionally, an employer can require the employee to exhaust sick and vacation time at the beginning of FMLA leave although the employer must pay for the sick and vacation time used. The employer must also maintain benefits for the employee, including health insurance. The employee is still responsible for the same premiums owed before and after leave.
FMLA provides remedies for employees when employers violate FMLA by refusing leave or discriminating against an employee for requesting or exercising FMLA rights. Sometimes employers deny leave because they improperly reject the serious medical condition or because they want the employee to work during the requested leave period. Other employers will refuse leave to try to force an employee to choose between the FMLA leave or quitting. Each of these situations violates FMLA. Employers also violate FMLA when they refuse to reinstate an employee after leave, give the employee an inferior position upon returning, or treat the employee poorly based upon the leave, such as giving the employee less favorable work assignments, lower bonuses and the like. FMLA also prohibits retaliation, including opposing FMLA violations and reporting violations, even if you are not the employee requesting leave.