The Common Law

The Family and Medical Leave Act enables an eligible employee to a total of 12 workweeks of unpaid leave during any 12-month period because of: 1) birth and care of the employee's child or placement for adoption or foster care of a child with the employee, 2) care of an immediate family member (spouse, child, parent) who has a serious health condition, or 3) care of the employee's own serious health condition.

First, to be an "eligible employee," the employee must have worked for an "employer" more than 1,250 hours over the last 12-month period before she requested the FMLA leave. An "employer" qualifies as an employer under the FMLA if it employs more than 50 people within a 75-mile radius of where the employer is working.

The FMLA also states that employee leave is only protected under the FMLA if the employee provides the employer with at least 30 days notice before the leave is to begin or, if the leave is to begin in less than 30 days, if the employee provides such notice as is practicable. The courts have determined the latter needs to be decided on a case-by-case basis and have decided the key question is whether or not the notice of the intent to take FMLA leave was sufficient under the circumstances in any particular case.

If you are an eligible employee of a covered employer and give proper notice of your request for FMLA leave, you are entitled to 12 weeks of leave under the FMLA, and you are entitled to return to the same or an equivalent job (defined as one with equivalent pay, benefits, responsibilities, etc.). In certain situations, employees may take FMLA leave in blocks of time less than the full 12 weeks on an intermittent- or reduced-leave basis when medically necessary. In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefits that the employee earned or was entitled to before using (but not necessarily during) FMLA leave. Stay tuned next week for a discussion of the employer's rights under the FMLA.