The Family & Medical Leave Act (FMLA) allows “eligible” employees to take off up to 12 work weeks in any 12 month period for the birth or adoption of a child, to care for a family member, or if the employee themselves has serious health condition. If married employees both work for the same employer, they cannot each take 12 weeks off for the birth of a child, adopting a child, or to care for a parent with a serious health condition.

An “eligible” employee is an employee who has been employed by the employer for a least 12 months and worked at least 1,250 hours. The 12 months do not need to be consecutive. You are only an “eligible” employee if your employer employs 50 or more employees within 75 miles of the worksite. However, public agencies, including schools, are subject to FMLA regardless of the number of employees employed.

FMLA can be taken on an intermittent basis allowing the employee to work on a less than full-time schedule. The leave may be unpaid leave. The employee is entitled to have their benefits maintained, but they must continue to pay their portion during the leave.

The eligible employee must provide 30-day advance notice for foreseeable events. The employer is allowed to ask the employee to obtain a certification from a medical provider testifying to the need for the employee to take the leave for themselves or for the family member. Ordinary illnesses do not qualify for FMLA; such as, common cold, flu, ear aches, upset stomach, headaches, and routine dental care. Substance abuse is covered when the employee is seeking treatment, and not just impaired by their usage. To be eligible for FMLA an employee must have a condition that makes him or her unable to perform their essential job function.

The employee has the right to return to the same or equivalent position, pay, and benefits at the conclusion of their leave. An equivalent position is one that is virtually identical to Plaintiff’s former position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. It is unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by the FMLA.

No information in this article is intended to constitute legal advice. For specific legal advice, please contact an attorney.

Betty L. Brown
Board Certified by the Texas Board of Legal Specialization
in Labor and Employment Law
Fountain Park
1021 Long Prairie Road, Suite 402
Flower Mound, TX 75022
Phone: 972-355-0092
Fax: 972-899-9635
E-mail: [email protected]