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Family and Medical Leave

April 13, 2006

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It had become something of an unwritten tradition for employers to give employees time off (either paid or unpaid) to handle family sicknesses, births, adoptions, and medical emergencies. That is, until the passage of the Family and Medical Leave Act (FMLA).

Family leave is now mandated under the federal Family and Medical Leave Act. Only employers with 50 or more employees are subject to this law. In a nutshell, it requires that covered employers allow employees to take the equivalent of 12 weeks of unpaid leave each year due either to a birth or adoption of a child, or to attend to the serious health condition of an immediate family member or to the employee's own serious health condition.

What is a serious health condition? A serious health condition under the FMLA is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care (an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with the inpatient care or continuing care by a health care provider that includes one or more of the following:

• A period of incapacity of more than three consecutive days.
• Any period of incapacity due to pregnancy or for prenatal care.
• Any period of incapacity or treatment due to a chronic serious health condition.
• A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective.
• Any period of absence to receive multiple treatments by a health care provider, including conditions that are not currently incapacitating but would be if left untreated.

The FMLA also requires that after the 12 weeks of unpaid leave, you must reinstate the employee in the same job or an equivalent one. Note that the leave does not have to be taken all at once; in some instances family leave can be taken one day at a time.

State law.

While the small size of your business may exclude you from having to comply with federal family leave laws, a few states have family or medical leave laws that place requirements on private employers with fewer than 50 employees. If you are in one of these states, make sure that you understand and comply with the requirements of your state's family leave laws:

Arkansas. Employers are required to provide an unpaid leave of absence for employees to serve as organ donors or bone marrow donors.

Connecticut. Effective October 1, 2005, family leave benefits granted to spouses in a marriage are extended to same-sex partners who enter into a civil union in the state.

California. An employer who employs 25 or more employees working at the same location may not discharge or in any way discriminate against an employee who is a parent, guardian, or grandparent having custody of one or more children in kindergarten or grades one to 12, inclusive, or attending a licensed child day care facility, for taking up to 40 hours each year, not exceeding eight hours in any calendar month of the year, to participate in activities of the school or licensed day care facility of any of his or her children. The employee must give the employer reasonable notice of his or her planned absence prior to taking the time off.

Effective July 1, 2004, partial wage replacement benefits are available through California's Paid Family Leave Program for employees who take time off to care for a seriously ill parent, spouse, registered domestic partner or child, or to bond with a new child.

The program is part of the California state disability insurance program and employees must be covered by state disability insurance provisions in order to be eligible for family leave benefits under this program. The Paid Family Leave Program is funded through employee contributions to the state disability insurance fund and contributions and benefits are based on an employee's earnings.

Employers must provide information about the Paid Family Leave Program to employees hired on January 1, 2004, or later, and to employees who leave work on July 1, 2004, or later to care for a seriously ill parent, spouse, registered domestic partner or child, or to bond with a new child. An eligible employee may receive up to six weeks of benefits in a one year period. An employee is required to notify an employer of the reason for taking leave under this program in a manner consistent with the employer's leave policy. Medical verification may be required before an employee can collect benefits and there is a seven day waiting period before benefits are paid. An employer may require an employee to use up to two weeks of vacation leave before receiving benefits under this program. The seven day waiting period for benefits may be fulfilled by using one week of vacation. Employees are not eligible for benefits under the Paid Family Leave Program while receiving state disability insurance benefits, unemployment insurance or workers' compensation. The Paid Family Leave Program does not provide job protection or return rights.

District of Columbia. The family and medical leave law applies to any employer who employs 20 or more persons in the District. An employee is entitled to a total of 16 workweeks of family leave during any 24-month period for: (1) the birth of a child of the employee; (2) the placement of a child with the employee for adoption or foster care; (3) the placement of a child with the employee for whom the employee permanently assumes and discharges parental responsibility; or (4) the care of a family member (including a domestic partner or his or her dependent child) of the employee who has a serious health condition. Family leave may consist of unpaid leave, but any paid family, vacation, personal, or compensatory leave provided by an employer that the employee elects to use for family leave counts against the 16 workweeks of allowable family leave. Employees are also eligible for up to 16 weeks of leave in any 24-month period for their own serious health condition.

Hawaii. Employees may take a leave of absence from work if they or the employee's minor child are victims of domestic or sexual violence. Leave is intended for the employee to seek medical attention, obtain services from a victim services organization, obtain counseling, relocate or take legal action. Employers with less than 50 employees must allow an employee to take up to five days of unpaid leave from work per calendar year under this provision.

Effective July 12, 2005, an employee may use temporary disability insurance sick leave benefits in excess of minimum statutory temporary disability insurance benefit requirements for family leave purposes.

Illinois. An employer must grant an employee up to eight hours total leave during any school year (no more than four of which may be taken in one day) to attend school conferences or classroom activities for the employee's child if the conferences or activities cannot be scheduled during nonworking hours. School visitation leave may not be taken unless the employee has exhausted all accrued vacation leave, personal leave, compensatory leave and any other leave that may be granted to the employee, except for sick leave and disability leave. An employer is not required to grant school visitation leave to an employee if granting the leave would result in more than five percent of the employer's work force or work force shift taking school visitation leave at the same time.

Effective August 15, 2005, Illinois employers who employ between 15 and 50 employees must provide up to 15 days of unpaid family military leave to an employee during the time federal or state deployment orders are in effect. Employers who employ more than 50 employees must provide up to 30 days of unpaid family military leave during the federal or state deployment orders.

Family military leave means leave requested by an employee who is the spouse or parent of a person called to military service longer than 30 days with the state or United States pursuant to orders of the Governor of Illinois or the President of the United States. The law applies to employees who have been employed with the same employer for at least 12 months and have been employed for at least 1,250 hours of service during the 12-month period immediately preceding commencement of the military leave. The law does not apply to independent contractors.

Employees wishing to take family military leave must give their employer at least 14 days notice of intended leave if the leave is to consist of five or more consecutive workdays. For leaves of less than five days, the employee should give notice as soon as practicable. Where they are able to do so, employees are to consult with their employer so as not to unduly disrupt the employer's operations. In addition, all other accumulated leaves, except for sick leave and disability leave, must be exhausted before the employee can make use of the family military leave.

Louisiana. Employers of 20 or more employees must allow an employee up to 40 hours of paid leave to donate bone marrow. In addition, employers may grant employees leave from work for up to 16 hours during any 12-month period to attend, observe or participate in conferences or classroom activities at a school or day care center related to the employees' children. Leave may be granted only if the conferences or classroom activities cannot reasonably be scheduled during nonworking hours.

Maine. Maine employers (private and public sector) of 15 or more employees are covered by the state family and medical leave law. Covered employers must provide eligible employees with unpaid family medical leave of up to 10 consecutive workweeks in any two years. Leave may be taken for the birth of a child, the adoption of a child 16 years old or younger, or the serious illness of the employee or a child, parent, or spouse or of the employee. Maine includes leave for organ donation in its definition of family medical leave.

In addition, Maine employers must give reasonable leave from work, with or without pay, to all employees who are victims of domestic violence and need to prepare court proceedings, get medical treatment or remedy a crisis caused by domestic violence, stalking or sexual assault. Leave need not be granted if it would cause an employer undue hardship, is unreasonable on the facts made known to the employer, or is not timely requested under the circumstances.

Effective June 29, 2005, employers with 25 or more employees are required to allow employees to use paid leave for the care of an immediate family member who is ill.

Massachusetts. Employers must allow employees 24 hours of leave in any 12-month period for family obligations. Family obligations include participating in school activities directly related to the educational advancement of the employee's child, accompanying the employee's child to routine medical and dental appointments and accompanying an elderly relative to medical, dental, or nursing home interview appointments.

Minnesota. Employers with 21 or more persons at least one site must permit an employee who is a natural or adoptive parent to take up to six weeks' leave in connection with the birth or adoption of a child. An employee may also use personal sick leave benefits for absences due to illness or injury to the employee's child on the same terms the employee is able to use sick leave benefits for the employee's own illness or injury.

Employers with one or more employees must grant an employee leave of up to a total of 16 hours during any 12-month period to attend school conferences or school activities (including daycare and pre-kindergarten) related to the employee's child (includes foster children) if the conference or school activity cannot be scheduled during nonworking hours. In addition, employers with one or more employees must permit up to 40 hours of paid leave to donate bone marrow.

Employees may take time off work to seek relief under the Minnesota Domestic Abuse Act.

Nebraska. Nebraska employers are required to grant a leave of absence to an adoptive parent if they grant employees a leave of absence when a child of the employee is born. Exceptions for adoptions of stepchildren and children over certain ages apply.

Nevada. An employer cannot terminate the employment of a person who as a parent, guardian or custodian of a child appears at a conference requested by the administrator of the school the child attends, or is notified during work by a school employee of an emergency regarding the child. In addition, an employer cannot assert to an employee that the person's appearance or prospective appearance at a conference or receiving notification during work will result in termination of employment.

New York. Employers with at least one day's prior notice must permit time off for victims or witnesses to pursue legal action related to domestic violence.

North Carolina. Employers must grant four hours leave per year to any employee who is a parent, guardian or person standing in the place of a parent of a school-aged child so that the employee may attend or otherwise be involved at that child's school. The leave need not be paid.

Oregon. Oregon's family leave law applies only to employers that employ 25 or more persons in the state. Eligible employees are entitled to 12 weeks of unpaid leave within any one-year period.

In addition, female employees may take a total of 12 weeks of leave within any one-year period for an illness, injury, or condition related to pregnancy or childbirth that disables the employee from performing any available job duties offered by the employer. A female employee who has been granted pregnancy disability leave need not re-qualify for an additional 12 weeks of family leave within the same leave year.

An employee who takes 12 weeks of family leave within a one-year period for the birth of a child, adoption of a child under 18, or placement of a foster child under 18 may also take up to an additional 12 weeks of leave to care for a child of the employee who, though not suffering from a serious health condition, has an illness, injury, or condition that requires home care.

Leave may also be taken to care for a family member with a serious health condition or to recover from or seek treatment for a serious health condition of the employee that renders the employee unable to perform at least one of the essential functions of the employee's regular position, as well as for school visitation. Family members include same-sex domestic partners.

Puerto Rico. A female employee who adopts a minor five years old or less that is not registered in an educational institution, is entitled to the same leave benefits that an employee who gives birth is entitled to under Puerto Rico's pregnancy/maternity leave law.

Rhode Island. Employees who have been employed by the same employer for 12 consecutive months are entitled to school involvement leave up to a total of 10 hours of leave during any 12-month period to attend school conferences or other school-related activities for the employees' child, foster child or a child for whom the employee is the guardian. The leave may be unpaid, but employees may substitute any accrued paid leave or other appropriate paid leave for any part of school involvement leave.

Vermont. Vermont's parental leave law covers employers of 10 or more and its medical leave law covers employers of 15 or more. Covered employers must allow eligible employees to take up to 12 weeks during any 12-month period for unpaid parental or medical leave.

Parental leave may be taken following the birth of the employee's child or within a year following the initial placement of a child 16 years of age or younger with the employee for adoption.

Medical leave may be taken for the serious illness of the employee or the serious illness of the employee's child, stepchild or ward (living with the employee), foster child, parent, spouse, or parent of the employee's spouse.

Also, employees may take unpaid leave of up to four hours in any 30-day period or up to 24 hours in any 12-month period to participate in school activities directly related to the academic educational achievement of the employee's child, to accompany a child, spouse or parent to medical, dental, or other professional appointments, or to respond to a medical emergency involving the employee's child.

Vermont's family leave benefits are applicable to same-sex couples.

Washington. An employer must allow an employee to use the employee's accrued sick leave or other paid time off to care for a child of the employee under the age of 18 with a health condition that requires treatment or supervision or to care for a spouse, parent, parent-in-law or grandparent of the employee who has a serious health condition or an emergency condition.

Washington employers must grant an adoptive parent or stepparent, at the time of birth or initial placement for adoption of a child under six years of age, the same leave under the same terms as the employer grants to biological parents. The same terms for leave apply for men and women. An employer may restrict the leave to those living with the child at the time of birth or initial placement.

Some states require specific benefits for maternity, adoption, or parental leave situations.And there are some variances you'll need to check on between state and federal laws as well as regulations. See this Department of Labor site for further current information.

While you may not be large enough to be required to provide medical or family leave under a state or federal law, you may choose to give employees some type of leave for these situations. You may choose to offer employees vacation time or personal time.

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