7-A | WHO IS COVERED UNDER THE FMLA, AND WHEN IS THE RIGHT TO A LEAVE TRIGGERED?

The FMLA requires covered employers (those with 50 or more employees) to provide eligible employees (those who have been employed with their current employer for at least 12 months and who have worked at least 1250 hours in the last 12 months) with up to 12 weeks¹¹ of unpaid leave each year for:

1) The employee’s own serious health condition which makes the employee unable to perform the essential functions of her job;

a) A serious health condition¹² is an illness, injury, or physical or mental condition that involves either:

(1) inpatient care (an overnight stay) in a hospital or other medical facility, including any period of incapacity (inability to work, attend school or perform other daily activities) or for subsequent treatment in connection with such care; or,

(2) continuing treatment by a healthcare provider¹³ consisting of any of the following:

(a) a period of incapacity of more than 3 consecutive days and subsequent treatment or incapacity relating to the same condition that also involves:

(i) treatment 2 or more times by a health care provider, or

(ii) at least 1 treatment by a health care provider that also results in a regimen continuing treatment;

(3) any period of incapacity due to pregnancy or for prenatal care;

(4) any period of incapacity or treatment for incapacity due to a chronic serious health condition; or,

(5) any period of absence to receive multiple treatments for restorative surgery or for a condition that would likely result in incapacity for more than 3 days without medical intervention.

2) The care of a spouse, son, daughter or parent of the employee who has a serious health condition;

3) The birth and first year care of the employee’s child; and,

4) The placement with the employee of a son or daughter through adoption or foster care. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Footnotes

¹¹ Employer is not obligated to hold job open beyond the 12-week period when employee unable to return at the end of the period.
¹² Serious health condition does not include occasional days taken for the flu or for some other purpose, unless all of the conditions for a serious health condition are met. This is significant because if the employer allows such occasional sick leave, that leave may not be counted against as employee’s 12 week FMLA entitlement.
¹³ Includes a doctor of medicine or osteopathy who is authorized to practice medicine or surgery in the state or a podiatrist, dentist, clinical psychologist, optometrist, chiropractor (in limited circumstances), nurse practitioner authorized to practice in state.

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