Legal Words of Wisdom: FMLA
The federal Family Medical Leave Act is a product of our political system. Like virtually every federal law, it’s a compromise between competing interests. In this case, the competitors are employers and employees. This tug of war has left the law threadbare, from the employee perspective.
It covers employers with fifty or more employees, which leaves many employers beyond the law's reach. For instance, according to 2007 estimates by the Pennsylvania Department of Labor & Industry, approximately 663,000 private, non-governmental employees in Philadelphia, Bucks, Montgomery, Delaware and Chester counties (Pennsylvania) would not be covered by the FMLA because their employers are not large enough. The percentage of the private workforce in the five county area whose employers have less than fifty employees is 42.8%. If you work for such an employer, you need not apply for FMLA leave, because there is none.
If your employer is large enough, more hurdles await. An employee needs to work at least 1250 hours over a twelve month period of time to qualify. New employees need not apply.
A covered employee can take up to 12 weeks off, and that time can be taken all at once, broken down into a reduced schedule or taken as needed. An employer may require an employee to use earned paid time off as part of those twelve weeks. Any remaining time taken off would be unpaid, which for many families would present a financial hardship (New Jersey has recently enacted a paid family leave law). If you can’t afford to miss paychecks, you need not apply.
The law covers employees, their spouses and immediate family members. Unmarried couples need not apply.
On the plus side for employees, the law covers those with a "serious medical condition". The definition of that term is very broad, and much easier to meet than the definition of "disabled" under the ADA. The definition of "serious medical condition" includes the following:
- It requires inpatient care,
- It requires an absence from work of more than three days plus treatment,
- It’s chronic and it requires treatments, or treatment for it may not be effective, or
- It’s non-chronic but requires multiple treatments.
Just about anyone diagnosed with some form of cancer should meet this definition. As stated above, however, there are many potential hurdles to actual coverage by the FMLA. An employer is free to have a medical leave policy that’s more generous than the FMLA, and anyone in need of such a leave should ask their employer about its policy. Whether or not the FMLA applies, depending on the circumstances, a medical leave may be considered a reasonable accommodation under the federal Americans with Disabilities Act and/or applicable state anti-discrimination laws.
Rodney Warner is a staff attorney at the Legal Clinic for the Disabled, Inc., a non-profit law firm that provides free legal services to the physically disabled in Philadelphia and the surrounding Pennsylvania counties. Rodney is a cancer survivor and his position is funded by a grant from the Lance Armstrong Foundation. The clinic’s website is www.legalclinicforthedisabled.org This article is for informational purposes only and is not intended as legal advice. Please speak with an attorney for legal advice.