Blanchard & Walker Weekly

Topic of the Week  Family and Medical Leave

  • I would like to take family or medical leave. How does the law protect me?
  • What is a "serious health condition?"


I would like to take family or medical leave. How does the law protect me?

Under federal law and some state laws, certain employees have the right to take up to 12 weeks of unpaid leave per year (any 12-month period) for the following reasons:

  • you have a serious health condition that keeps you from doing your job;
  • you need to care for a sick child, spouse, or parent with a serious health condition;
  • you need to care for a newborn child, newly adopted child, or foster child.
  • you have a family member who is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation and need time to manage their affairs

In addition, certain eligible employees have the right to take up to 26 weeks of unpaid leave per year (any 12-month period) to care for a covered service member with a serious injury or illness incurred in the line of duty on active duty.

If you are eligible, you may take family leave (leave to care for someone in your family) or medical leave (leave to seek care for or recover from your own serious health condition) without losing your job.

Under the law, your job is protected during your leave. When you return to work, your employer must give you either the same job you had before your leave, or a position with equivalent benefits, pay, working conditions, and seniority. Your employer must continue to pay for your health insurance coverage during your leave as it normally would have during your employment.
If you qualify for a family or medical leave, you have the right to take that leave free from harassment or discrimination. Your employer cannot interfere with your right to take leave, discriminate against you for requesting information about your rights, or discriminate against you for taking a leave.

What is a "serious health condition?"

A "serious health condition" is an illness, injury, impairment or physical or mental condition that involves:

  • in-patient care in a hospital, hospice or residential medical care facility; or
  • continuing treatment by a health care provider.
  • In general, if you or your family member are
  • incapacitated for more than three consecutive days,
  • seeing a doctor or other health care provider at least twice within 30 days (the first visit must take place within 7 days of the incapacity), and
  • under a regimen of continuing treatment by the health care provider,
  • you or your family member are considered to have a condition that "involves continuing treatment by a health care provider," and are thus protected under the FMLA even if no hospitalization is involved.

However, a regimen of continuing treatment that includes the taking of over-the-counter medications or bed-rest or other similar activities that can be initiated without a visit to a health care provider is not, by itself, sufficient to constitute a regimen of continuing treatment for the purposes of FMLA leave.

Some examples of conditions generally considered "serious" are: heart conditions, strokes, back conditions, injuries caused by accidents, pregnancy and related conditions such as miscarriages and morning sickness, cancer, asthma, pneumonia, diabetes, epilepsy, serious infections, Alzheimer's, and arthritis.

There are many other health conditions not on this list that could also be considered serious health conditions.


Thought of the Week


Weekly Comic by Jerry King

Weekly Comic by Jerry King

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    • Sick Leave
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