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6 Things You Need to Know About the Family and Medical Leave Act

Jada A. Graves

Last year my mother was battling terminal cancer. My decision to take off from work to help care for her was instinctual, but it was met with a suite of questions about how to balance my personal wishes with my professional responsibilities. Would I be able to take the time off and still keep my job? Was I eligible to use leave guaranteed by the Family and Medical Leave Act (FMLA), and was my company an eligible employer to grant this leave? How would it affect me and my employer, both during my time away and when I returned to work? What's FMLA in the first place?

Like many, I was unfamiliar with FMLA's provisions, and suddenly, a circumstance had arisen that caused me to consider them.

It's a good practice to keep abreast to all possible employee privileges at your job, so you know where you stand before you face a situation where you'll need to use them. When it comes to FMLA, specifically, here are a few things that you might not have known.

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1. First, what is it? The Family and Medical Leave Act took effect in 1993 to help balance workplace demands with the medical needs of employees and their families. You're entitled to take up to 12 weeks of unpaid leave during a 12-month period for your own serious health condition, or to care for an immediate family member who has a serious health condition. You may also use the FMLA for what the Department of Labor website refers to as "birth and bonding:" an extended parental leave for the birth or adoption of a child, and for bonding with a new foster child.

If you're going to be caregiver to an "immediate family member," brush up on your state's definition of whom that is. According to the federal law, immediate family members are parents, spouses and children. Various states have expanded the definition to include a domestic partner, a parent-in-law, a sibling and a grandparent, so check your state's labor laws as well as with your company's human resources (HR) department.

2. Not every employee is eligible. Just because you're working doesn't mean you're protected for extended leave under the FMLA. Eligible employees must have worked for their employer for at least 12 months prior to requesting the leave. And they must also have worked at least 1,250 hours in those 12 months. For someone who works an eight-hour day, that translates to approximately 156 days.

Your company must also be eligible to let you use the privilege, which means it must have at least 50 employees who work within 75 miles of its location. Once again, various states have different provisions, so consult with HR.

3. Your employer may require that you use paid leave first. Also check with HR about whether or not your employer will require that you use up your paid leave before using leave under the FMLA. Even if your company doesn't require it, you may still elect to first use accrued time for the obvious financial benefits. "This could be good for you," says Gregory Grant, a partner and the chair of the employment and labor practice at the Washington D.C.-based law firm Shulman Rogers. "For most of us, losing pay entirely would be an issue."

Keep in mind, though, that paid leave you use won't count against the 12 unpaid weeks you're entitled to. For example, if you work for a company that offers paid maternity leave, you'd use that first before taking additional time using the FMLA.

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4. Your employer may require proof of the serious health condition. This can be a touchy issue when it comes to your own health and that of your family. It's not written in the law that you must always garner proof of the reason you need to take leave, but your boss is entitled to ask for it, and if he or she does, you must obtain certification from a health care provider. "It is a sensitive issue, and a private issue. But still, for extended leave, I counsel my employers that yes, they should seek certification. Just go about it in a responsible manner," Grant says.

The Department of Labor website states that an employer should request certification at the time you request the leave or within five business days. After that, you're allowed at least 15 calendar days to obtain proof. An employer may also contact your health care provider for authentication or clarification, but breathe easy--employers are not allowed to ask providers for additional information beyond what is contained in the certification form.

5. A job is guaranteed to you, but not necessarily the same job you had before. Ideally, your company will be able to restore you to the same job you had before. But that isn't what's guaranteed. According to the Department of Labor website, "an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment."

"Employers have a broader obligation to all of their employees to run and operate their businesses appropriately, and to continue to do business," Grant says. "We're talking about a quarter of the year's worth of leave."

"You won't leave as a manager and then come back working as a well-paid subordinate. Equivalent means that if you left a manager, you return a manager. However, you might leave as manager of 'Y' and then come back to be manager of a complementary function of the business," Grant continues.

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6. You may request additional time to care for a member of the military. Under the FMLA, you may take up to 26 weeks of leave in a single 12-month period to care for a covered service member with a serious health condition, provided that you're the service member's spouse, child, parent or the nearest blood relative who has been granted legal custody of the injured service member. The same stipulations for employee and employer eligibility apply, and covered service members means someone in the regular or reserved Armed Forces who was on active duty or was called to active duty.

There are numerous other regulations and provisions to cipher if you're considering leave under the FMLA. For complete information on how the law may work for you, visit the Department of Labor's website.

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