New parents aren’t the only ones who sometimes need to take an extended leave from work. After all, you came from somewhere and someone (not the stork), and you might end up taking care of that parent at a much younger age than you anticipated. Or, maybe you need time off to care for yourself. Thankfully, the Family and Medical Leave Act (FMLA) allows employees to do that without risking their job security.
Despite its imperfections, the FMLA is a pretty essential piece of legislation for workers today — particularly for women, who are still overwhelmingly burdened with providing care for children and other relatives (and receive inadequate compensation for both tasks).
But if you need time off, don’t think you need to be a mom to take advantage of the FMLA policy. James M. Paul, co-chair of the American Bar Association (ABA) Subcommittee on the Family and Medical Leave Act, and a shareholder with the Ogletree Deakins law firm, explains how it works.
So, what exactly are the rules if the person you’re taking care of is not your child?
Under FMLA, you can take 12 weeks of leave to care for a sick child (defined as someone who is under 18 years old, or over 18 years old if that person has a disability that prevents them from taking care of themselves), a spouse, or a parent. If you’re caring for your spouse or parent, you need certification from a doctor to prove that you are needed to help care for your loved one.
It can be complicated to define what it means to "care" for someone in court, Paul says: “Does it mean sitting with a sick parent who’s in pain and needs emotional support? Does it mean picking up groceries and medications for them, or taking them to therapy appointments? It very well could mean [any of those things], and if a doctor says that that employee is needed to care for the sick spouse, parent, or child over 18, then the employer has to grant that time off.”
Additionally, the family military caregiver provision allows injured service members to receive FMLA-sanctioned care from a relative (spouse, child, or next of kin) for up to 26 weeks. Paul admits that he has never actually seen anyone take all 26 weeks of allowed leave, “partly because most people can’t afford 26 weeks of unpaid leave.”
Who can use FMLA, and for what?
Employees can use FMLA following the birth (or adoption or fostering) of a child, to care for a sick child, spouse, or parent, or if you have an extended illness or health condition. Once you tell your employer that you plan to take your leave, you’ll have to present medical certification explaining why it is necessary. For example, Paul says, a person taking leave for their own health condition will need to provide a form from their doctor explaining the impairment. If you’re taking care of someone else, that person’s doctor will need to provide the same thing — a certification of the impact of the illness, which will show the employer that time off and help are needed to get to doctor’s appointments, administer medication, and more.
Unfortunately, not everyone is eligible for FMLA. You must work at a company with 50 or more employees — and you must have worked at least 1,250 hours for at least 12 months (but those months don’t have to be consecutive). That may disqualify some individuals who work part-time or work for small businesses, explains Paul.
Do you have to take all 12 weeks at once?
Generally speaking, no. You may be able to take your leave in small blocks of time — a day here, a half-day there — but you should work with your employer to determine what’s best. Federal law allows employers to mandate that employees take their entire block of leave at once for the birth of a child, Paul says. In some cases, that block may be defined as all 12 weeks or as one week; it depends on company policy. For all other reasons (caring for a sick child, spouse, or parent, or for your own serious health condition) an employer must allow intermittent leave, not necessarily in a prescribed block of time.
Can an employer end the benefit while I’m in the middle of taking my leave?
Nope. “If someone is currently on leave, their job is protected, meaning they have to be returned to the same or an equivalent job when they return, as long as they return within 12 weeks,” Paul says. “Second, they have to be continued on the group health plan at the same level and at the same cost, if any, to the employee as what existed before.”
So, your health plan can’t be terminated, changed, or downgraded while you’re gone or after you get back — and neither can your job. Remember, though: Those are the only things that FMLA actually provides. Federal law does not require that your time off be paid, only that it be given without penalty. You won’t be able to dodge or delay any company layoffs or employee terminations that were already in the works, either. An employer can’t lay someone off or fire them because they’re on leave, but if it would have happened totally unrelated to that time off, it's fair game, Paul says.
Sometimes that can end up being a "they said" versus "I said" situation. For instance, if you work for someone who constantly gripes about employee illnesses and absences, and then you get fired not long after coming back from leave, it might be hard to tell whether your boss is going through with a decision they already planned, or whether they’re retaliating. In that case, the onus is generally on the employer to provide documentation showing that your performance merited firing — unrelated to your leave — and that you would have been given the boot either way.
What if I’m a freelancer?
This question is a hot topic right now because of the rise of independent contractors across the country, so FMLA could shake out in a few different ways. If you’re an independent contractor or you work for an agency (meaning you’re placed somewhere as a temp, seasonal employee, or a staffing agency employee) technically, the employer that is writing your checks has the obligation to protect your leave.
“It is a pretty strict requirement that if you’re an employee of somebody, that company would have to give you the leave," he explains. "If you can’t establish that you’re the employee of anybody because you’re a freelancer or you’re a contractor, then technically [they] wouldn’t be implicated.”
If you run into a hurdle with an employer you feel has violated your FMLA rights, you have two options, Paul says: to file a complaint with the Department of Labor, or to go to court and argue that the law and regulations somehow cover you or make you eligible.
Under the Obama administration, the Department of Labor made particular efforts to try to protect workers like this, Paul says, but now there’s an obvious problem: We’re in a new day, under a new president. It is highly unlikely the DOL under the Trump administration (which has trended toward fewer employee protections and benefits) will do the same.