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Family Medical Leave Act

The right of employees to family and medical leave shall be set forth within this document and the Family and Medical Leave Act of 1993.  The Board will apply the employee's accumulated sick leave hours concurrent with the time period approved under the FMLA and if no sick leave is available, annual leave may be used. An eligible employee is one who has been employed during the prior year with SMCPS for at least 1,250 hours.

The FMLA provides an entitlement of up to 12 work-weeks of job-protected, unpaid leave during any 12-month period for one or more of the following reasons:

  • for the birth and care of the newborn child of the employee;
  • for placement with the employee of a son or daughter for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent - but not a parent "in-law") with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.

Leave for birth and care, or placement for adoption or foster care must conclude within 12 months of the birth or placement.

Under some circumstances, employees may take FMLA leave intermittently - which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.

  • If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer's approval.
  • FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work.

"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or
  • continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to:

(1) A health condition (including treatment therefore, or recovery there from) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:

  • treatment two or more times by or under the supervision of a health care provider; or
  • one treatment by a health care provider with a continuing regimen of treatment; or

(2) Pregnancy or prenatal care.  A visit to the health care provider is not necessary for each absence; or

(3) A chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes).  A visit to a health care provider is not necessary for each absence; or

(4) A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal cancer).  Only supervision by a health care provider is required, rather than active treatment; or

(5) Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity for more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).

If an employee was receiving group health benefits when leave began, an employer must maintain them at the same level and in the same manner during periods of FMLA leave as if the employee had continued to work. Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or annual leave) to cover some or all of the FMLA leave.

Employees may take FMLA leave in blocks of time less than the full 12 work-weeks on an intermittent or reduced leave basis when medically necessary.  Taking intermittent leave for the placement, adoption, or foster care of a child is subject to the employer's approval.  Intermittent leave taken for the birth and care of a child is also subject to the employer's approval except for pregnancy-related leave that would be leave for a serious health condition.

When the need for leave is foreseeable, an employee must give the employer at least 30 days notice, or as much notice as is practicable.  When the leave is not foreseeable, the employee must provide such notice as soon as possible.

An employer may require medical certification of a serious health condition from the employee's health care provider.  An employer may also require periodic reports during the period of leave of the employee's status and intent to return to work, as well as "fitness‑for‑duty" certification upon return to work in appropriate situations.

An employee who returns from FMLA leave is entitled to be restored to the same or an equivalent job (defined as one with equivalent pay, benefits, responsibilities, etc.) The employee is not entitled to accrue benefits during periods of unpaid FMLA leave, but the employer must return him or her to employment with the same benefits at the same levels as existed when leave began.

Military Family Leave

On January 28, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA), Public Law 110-181.  Section 585(a) of the NDAA amended the FMLA to provide eligible employees working for covered employers two important new leave rights related to military service.

(1)  New Qualifying Reason for Leave.  Eligible  employees are entitled to up to 12 weeks of leave because of "any qualifying exigency" arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation.  By the terms of the statute, this provision requires the Secretary of Labor to issue regulations defining "any qualifying exigency."  In the interim, employers are encouraged to provide this type of leave to qualifying employees.

(2)  New Leave Entitlement.  An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member who is recovering from a serious illness or injury sustained in the line of duty on active duty is entitled to up to 26 weeks of leave in a single 12-month period to care for the service member.  This provision became effective immediately upon enactment.  This military caregiver leave is available during a "single 12-month period" during which an eligible employee is entitled to a combined total of 26 weeks of all types of FMLA leave.

Additional Information

Additional information on the amendments and a version of Title I of the FMLA with the new statutory language incorporated is available on the FMLA amendments WEB site at Family and Medical Leave (FMLA)

FMLA - Employee's Serious Health Condition

FMLA - Care of Family Member Due to Serious Health Condition

Employee Rights

Employee Rights Under the Family & Medical Leave Act.