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What is the Family And Medical Leave Act?

The Family and Medical Leave Act of 1993 (FMLA) was created as a way of providing employees with a means of coping with the challenging demands of family and home. It applies to companies with 50 employees or more in one location or 50 employees within a 75­mile radius. It helps workers, who for personal reasons may require time off. It allows up to 12 weeks unpaid leave and the employee at the end of that period is entitled to return to the same or similar position that they were in before they left. The Act covers the following situations:

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) with a serious health condition; or
to take medical leave when the employee is unable to work because of a serious health condition.

The employee must have been with the company for more than one year and have worked more than 24 hours a week in the year preceding the requested leave. Usually, the employer will require a doctor`s certificate to corroborate the circumstances.

What Does The Federal Family And Medical Leave Act (FMLA) Govern?

The Family and Medical Leave Act (FMLA) allows certain employees up to twelve weeks of unpaid, job­protected leave per year. The FMLA calls for notification responsibilities. It also requires that group health benefits be maintained during the leave. The FMLA is designed to help employees balance their work and family responsibilities by taking reasonable unpaid leave for certain family and medical reasons. The FMLA also seeks to accommodate the legitimate interests of employers, and promotes equal employment opportunity for men and women. A number of states have also enacted family and medical leave laws, some of which provide greater amounts of leave and benefits than those provided by FMLA. In those situations where an employee is covered by both Federal and State FMLA laws, the employee is entitled to the greater benefit or more generous rights provided under the different parts of each law.

Who Is Covered By The Federal Family And Medical Leave Act (FMLA)?

Only employers that carry 50 or more employees at a worksite, or within 75 miles, are covered by the Federal Family And Medical Leave Act (FMLA). However, for an employee to be eligible, he or she must have worked for the employer for at least one year and must have worked at least 1,250 hours (an average of 25 hours a week) during the previous 12­month period. An employer may deny leave to any key employee who receives a salary in the top 10% of the work force and whose leave­taking would cause economic harm to the employer.

In order for the FLSA to apply there must be an employment relationship between an employer and an employee. An employee, as distinguished from a person who is engaged in a business of his or her own, is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business which he or she serves. There are exemptions. Some employees are exempt from the overtime pay provisions, some from both the minimum wage and overtime pay provisions and some from the child labor provisions.

Exemptions are narrowly construed against the employer asserting them. Therefore, employers and employees should always closely check the exact terms and conditions of an exemption in light of the employee`s actual duties before assuming that the exemption might apply.

Who Is Considered An Immediate Family Member?

An employee's spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in­law". The terms son or daughter do not include individuals age 18 or over unless they are "incapable of self­care" because of mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA).

Will I Lose My Job If I Take FMLA Leave?

Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies. Under limited circumstances, an employer may deny reinstatement to work ­ but not the use of FMLA leave ­ to certain highly­paid, salaried ("key") employees.

How long do I need to be employed in order to qualify for leave under the revised FMLA?

You must be employed by a covered employer, you must work at least 1,250 hours in the 12 months prior to your leave, you must work at or within 75 miles of a location where at least 50 employees work, and you must be employed for at least 12 months in order to qualify for FMLA leave. However, your 12 months does not have to be consecutive, although employment periods that are 7 or more years ago do not count, unless the periods were due to military obligations or the terms of a written agreement, such as a collective bargaining agreement.

Get Help from an Experienced Employment Law Attorney

Have you been discriminated against by a potential or current employer -- as a job applicant or current employee? To best protect your legal rights you should discuss your situation with an employment lawyer. Meet with a local family medical leave act (fmla) attorney sooner rather than later to protect your rights.

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