Legal Issues: Employee Leave FAQs

Employer Medical Leave Requirements

Suppose your front office manager asked for a leave of absence to care for an ailing family member. Do you know his rights and your obligations? For example, “How much time off are you required to offer for family medical leave and maternity/paternity leave? Must you pay the employee during leave? And in what situations (if any) can leave be extended?”

Answers to these questions vary depending on the size of your workforce as well as the state in which your practice is located. But the questions are bound to come up sooner or later. That’s why it’s important to familiarize yourself with state as well as federal labor laws.

Here are some FAQs and answers regarding family medical leave laws.

FMLA Basics

The Family and Medical Leave Act of 1993 (FMLA) is a federal law that requires certain “covered” employers to provide job-protected unpaid leave for qualified medical and family reasons to eligible employees (both male and female).

Does this apply to you? It does if you are a “covered” employer, meaning you employ 50 or more employees for 20 or more workweeks (this does not have to consecutive) in the current or previous calendar year.

Which employees are eligible for leave? An eligible employee is one who has worked for a covered employer for at least 12 months and has provided at least 1,250 hours of service for the employer during the 12-month period immediately before FMLA leave is to start. The employee must also work at a location where the employer employs at least 50 people within 75 miles of that worksite.

What happens when the employee returns to work after leave has ended? Job-protected leave means the employee will be able to return to the same or a comparable position after the leave has ended, except where the position is eliminated for business reasons unrelated to the employee’s leave. If the position is eliminated, an employer must offer a position comparable in terms of pay, job content, opportunity for promotion and location unless no such position exists.

How much time off are you required to offer, and under what circustances? Under FMLA, eligible employees are entitled to 12 workweeks of leave in a 12-month period for:

  • The birth of a child and to care for the newborn child within one year of birth
  • The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement
  • The care of an employee’s spouse, child or parent who has a serious health condition
  • A serious health condition that makes the employee unable to perform the essential functions of the job, including incapacity due to pregnancy and for prenatal medical care
  • Any qualifying exigency arising when an employee’s spouse, son, daughter or parent is a covered military member on “covered active duty.” These include making alternative childcare arrangements for a child of the deployed military member, attending certain military ceremonies and briefings, or making financial or legal arrangements to address the military member’s absence.

Do eligible employees with military family members have other rights under FMLA? FMLA also entitles eligible employees to 26 workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent or next of kin. This is called military caregiver leave.

Can I offer leave to employees who are not eligible under FMLA? If an employee is not eligible for FMLA leave, the employer may grant the employee leave under the company’s own leave policy. Once the employee becomes eligible, FMLA kicks in. For example, a pregnant employee who has been with the company for 11 months as of her due date on December 1 can take leave under the employer’s policy beginning on December 1. One month later, when she reaches 12 months of service, she becomes automatically eligible for FMLA and can now take up to 12 workweeks of FMLA-protected leave.

Employee Responsibilities

An employee seeking FMLA leave must give at least 30 days advance notice of the need to take leave if it is possible and practical to do so. If the employee does not provide at least 30 days advance notice, and it was possible and practical to do so, the employer may delay the FMLA leave until 30 days after the date that the employee provides the notice.

For planned medical treatment, the employee must consult with their employer and try to schedule treatment at a time that minimizes disruption to company operations. Leave can be intermittent or on a reduced schedule basis when there is a medical need for such an arrangement. However, an employee is not entitled to take intermittent leave for the birth and care of a newborn child or for the placement with the employee of a child for adoption or foster care unless the employer agrees to the arrangement.

Employer Responsibilities

Every FMLA-covered employer must provide general information regarding employee FMLA rights on a poster in plain view where all staff members and applicants can readily see and read it. When an employee requests leave, the employer must provide a written Rights and Responsibilities Notice to the employee within five business days of receiving notice of the employee’s need for leave. (Forms, including a Rights and Responsibilities Notice and FMLA Benefit Posters, are available online at

The Rights and Responsibilities Notice includes information such as:

  • Eligibility for FMLA leave
  • The designated 12-month period for counting FMLA leave entitlement
  • The employee’s right to take unpaid FMLA leave if the conditions for paid leave are not met
  • Instructions for making arrangements for any premium payments for maintenance of health benefits that the employee must make during leave
  • The employee’s right to job restoration and maintenance of benefits
  • Failure to notify employees of their eligibility status in a timely manner may constitute interference with, restraint or denial of the exercise of an employee’s FMLA rights.

State Requirements

If you are not a covered employer under FMLA, that does not mean you are exempt from offering employee leave. Many states have enacted their own employee leave laws, which are more stringent and apply to a larger pool of employers than FMLA. For example, California’s New Parent Leave Act extends unpaid family leave protections to businesses that directly employ 20 or more persons, effective January 1, 2018. It prohibits employers from refusing to allow an employee with more than 12 months of service, who has at least 1,250 hours of service with the employer during the previous 12-month period, and who works at a worksite in which the employer employs at least 20 employees within 75 miles, to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption or foster care placement.

In addition, California, New Jersey, Rhode Island and New York all have Paid Family Leave Benefits Laws (New York’s became effective January 1, 2018). These programs are funded through employee-paid payroll taxes and administered through the states’ disability programs. The California Paid Family Leave insurance program requires employers with 50 or more employees to provide up to six weeks of paid leave to care for a seriously ill child, spouse, parent or registered domestic partner, or to bond with a new child.

The New York Paid Family Leave Act provides leave to care for a child, spouse, parent, parent-in-law, step-parent, grandparent, grandchild, domestic partner or a person with whom the employee has or had an in loco parentis (in place of a parent) relationship. This law is in effect for all New York-based employers regardless of workforce size. The maximum leave allowed each year will increase over the next four years from eight weeks in 2018 to 12 weeks in 2021. The maximum benefit amount is 50 percent of an employee’s average weekly wage up to 50 percent of the state average weekly wage starting in 2018. This increases annually to 55 percent in 2019, 60 percent in 2020 and 67 percent in 2022.

Additional Leave Requirements

Employees who become disabled by an off-the-job injury or illness, including any disability resulting from pregnancy and childbirth, may be eligible for short-term disability benefits through various state disability leave laws. For example, all employees in New York receive statutory New York State short-term disability coverage. The employee is eligible to receive weekly disability payments for a maximum of 26 weeks in a 52-week period (currently 50 percent of one’s wages, to a maximum of $170). This leave entitlement is independent of any other leave and does not run concurrently with FMLA. Employers can extend leave past the required statutory time limits. However, any leave extensions would have to be granted equally to all employees who require such leave.

Federal law does not require employers to offer paid vacation or sick leave to employees. However, there are five states that currently require employer paid sick leave. In 2011, Connecticut became the first state to require private sector employers to provide paid sick leave to their employees. California became the second state to enact paid sick requirements, with the passage of the Healthy Workplace, Healthy Families Act of 2014. It requires all employers to offer a minimum amount of paid sick leave to employees each year—usually one hour for every 30 hours worked. Massachusetts passed Earned Sick Time for Employees in 2014, and the Oregon and Vermont Legislatures enacted paid sick leave laws in 2015 and 2016, respectively.

The rules regarding leave can be complicated and change frequently with innumerable nuances. To ensure that you are in compliance with all state and federal regulations, speak with an employment attorney who can prepare a comprehensive employee handbook that spells out the employer's policies and procedures. Those responsible for implementing FMLA should receive regular training to ensure they are up to date.

Allyson Avila is a partner at the national law firm of Gordon & Rees Scully Mansukhani. Contact her at 845.406.2935, [email protected].

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