Q&A: Family Medical Leave Act

At Meuser Law Office, P.A., we regularly have employees come to us with questions regarding the Family and Medical Leave Act (FMLA). This law involves an employee’s entitlement to leave, maintenance of health benefits during leave, and their ability to get their job back after taking leave. This law does not entitle an employee to wage loss benefits during leave but it does have some other substantive protections that will be outlined in this article. There are important distinctions between the federal and state Family and Medical Leave Acts, and it is crucial that you first determine whether you are a qualified employee working for an employer subject to the FMLA. This eligibility is discussed at length in the first part of this article and in a recently posted blog article.

How much leave am I entitled to under the FMLA?

Under the federal FMLA eligible employees are entitled to up to a total of 12 weeks during a 12-month period; however, leave for birth, adoption, foster care, or to care for a parent with a serious health condition must be shared by spouses working for same employer.

Under the Minnesota state law, eligible employees are entitled to six weeks for birth or adoption unless the employee and employer agree to a longer period. Additionally, an employee can use personal sick leave benefits to attend to a child for a reasonable period of time.

What types of leave are covered under the FMLA?

Under the federal law, there is unpaid leave for a birth, placement of child for adoption or foster care; to provide care for employee’s own parent, including individuals who exercise parental responsibility under state law; child or spouse with serious health condition; or the employee’s own serious health condition.

Under the state law, there is unpaid leave for a birth, adoption, and personal sick leave to attend to a child.

What constitutes a “health condition”?

Illness, injury, impairment, or physical or mental condition involving incapacity or treatment connected with inpatient care in hospital, hospice, or residential medical-care facility; or, continuing treatment by a health care provider involving a period of incapacity: (1) requiring absence of more than 3 consecutive calendar days from work, school, or other activities; (2) due to a chronic or long-term condition for which treatment may be ineffective; (3) absences to receive multiple treatments (including recovery periods) for a condition that if left untreated likely would result in incapacity of more than 3 days; or (4) due to any incapacity related to pregnancy or for prenatal care.

At the state level, there is no leave for the health condition for oneself or others, except for personal sick leave to attend to a child.

Is intermittent leave permitted under FMLA?

Intermittent leave is allowed for a serious health condition when it is medically necessary; however, it’s not used to care for a newborn child or new placement by adoption or foster unless the employer agrees to this leave.

Can an employee elect or be forced to take accrued paid leave instead of leave under FMLA?

Employees may elect or employers may require accrued paid leave to be substituted in some cases. There is no limits on substituting paid vacation or personal leave, but an employee may not substitute paid sick, medical, of family leave for any situation not covered by the employers’ leave plan.

The Minnesota law is more limited. An employee may use paid sick leave provided by employer.

Upon return to work, does the employer have to reinstate the employee to his or her same position?

No, but under the federal act the employee must be restored to an equivalent position in terms of benefits, terms, and conditions of employment.

In Minnesota, the result is similar but more nuanced. For birth or adoption leave the employee must be returned to the former position or to a position with comparable duties, hours, and pay; however, an employee returning from an absence of longer than one month must notify the employer at least two weeks before returning from leave. For school and personal sick leave to attend to a child, employees are entitled to return to their former position.

Are there any exceptions to FMLA?

Yes, there is an exception for salaried employees if the employee is among the highest paid 10% of employees and the employee works within 75 miles of the employer’s worksites. Additionally, allowing the employee to take leave and return to work must lead to grievous economic harm to employer, among other conditions.

Do health benefits have to be continued during leave?

Yes, under the federal law, health insurance must be continued under identical conditions. At the state level for birth or adoption leave, an employer must make coverage available under any group insurance policy, group subscriber contract or health care plan for the employee and their dependents – but the employer is not required to pay the costs of insurance.

When must a request be submitted by the employee to take leave?

A request must be submitted by the employee at least 30 days before the date leave is supposed to begin, where need is known in advance or, where not foreseeable, as soon as notice is practicable. If leave is taken because of a planned medical treatment or for intermittent leave, the employee has to make a reasonable effort to schedule it in a way that does not unduly disrupt the employer’s operation.

Under Minnesota law, an employer may adopt reasonable policies governing the timing of requests for unpaid leave for birth and adoption.

Can employer require medical certification?

Yes, when an employee requests leave because of a serious health condition an employer can require medical certification. Additionally, it can be required to demonstrate an employee’s fitness to return to work from a medical leave when the employer uniformly applies this standard.

If you, or a family member, have any questions about the Family and Medical Leave Act and how it may affect your benefits, contact the experienced attorneys at Meuser Law Office, P.A. We will help you understand the distinctions between the federal and state Family and Medical Leave Acts and ensure you receive the full benefits you are entitled. Contact us today for a free no obligation consultation.

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