Ask a Lawyer: What Are My Rights Under FMLA?

We’re bringing you articles about maternity leave all week — covering everything from current policies (or lack thereof) to personal stories and solutions that may be crazy enough to work. #matleaveweek


Meet Alia Wynne, of counsel at the labor and employment law firm Fisher & Phillips in Houston. Her expertise: issues that pertain to working mothers — from maternity leave to accommodations for lactation breaks — that may have nothing to do with your job description but everything to do with your quality of life.

family leave
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Companies can differ wildly when it comes to what they offer employees as benefits. But since 1993 we’ve had the Family and Medical Leave Act (FMLA), a federal law that requires employers to offer workers unpaid job protection if they need to take a leave for up to 12 weeks for a variety of reasons (from pregnancy to serious health issues). Read on for answers from Wynne about FMLA and our rights in the workplace.

What does FMLA cover?

Generally, [FMLA] requires employers to grant up to 12 weeks of unpaid leave for:

  • Childbirth, adoption, or placement of a foster child
  • Caring for a spouse, child, or parent who has a serious health condition
  • Employees who cannot perform their job duties because of their own serious health condition or who need to miss work for treatment of a serious health condition
  • Employees who need to miss work for certain reasons related to the active military status of their spouse, child, or parent (aka “qualifying exigency leave”)
  • Military caregiver leave (which provides up to 26 weeks of leave)

Who isn’t covered under FMLA?

[FMLA] doesn’t apply to smaller employers (those with fewer than 50 employees within a 75-mile radius), short-term employees (less than one year on the job), or part-time employees (less than 1,250 hours in the past year).

And despite its name, FMLA doesn’t cover all “family”-related absences — like when you have to stay home with a sick kid or your child care arrangements fall through, unless child care arrangements have to be made in connection with active military duty.  

FMLA is meant to apply to “serious” health conditions, rather than minor, everyday illnesses. This can be frustrating if you have young kids who are in preschool or day care, where rashes, flus, and bugs are as easily spread as a fistful of glitter. While most child care providers will send home little ones who have had symptoms in the last 24 hours, most of the colds, coughs, and tummy troubles your little germ magnets pick up will not be “serious” enough to trigger FMLA.

On the other hand, FMLA does cover some chronic conditions that are not necessarily life threatening but require ongoing treatment, such as asthma. Intermittent leave might be available for flare-ups or continuing treatment (such as periodic appointments with a specialist, or physical therapy). And if a minor illness becomes more serious because of an underlying condition or complications, FMLA may come into play.

Can your boss legally decide how to use your time? Are you required to use your paid leave (sick pay, vacation pay, floating holidays) first?

Your boss can’t tell you what to do while you’re on leave, but your job might not be protected if she finds out you were at the spa rather than in the hospital while on disability insurance (even if your doctor said you need to relax).  

And the “care for” entitlement is interpreted strictly — say your spouse, who normally stays home with the kids, is diagnosed with cancer and undergoes chemo treatments.  He can take care of his own basic needs, but he’s too weak to take care of the kids. Are you entitled to FMLA leave to cover his child care duties? No. While his cancer would be considered a “serious health condition,” FMLA wouldn’t apply unless he was unable to care for himself and you were caring for him — not the kids.

Your employer may require you to use your paid leave concurrently with your FMLA leave — your boss doesn’t have to give you additional leave beyond the 12 weeks of protected FMLA leave just because some of it was paid.

When it comes to maternity or paternity leave, what are the three most common areas where issues come up that you, as a lawyer, must get involved in?

To be honest, I rarely see issues related to maternity leave because it’s so clear cut, and questions about paternity leave are even less frequent. I think there is still a stigma against paternity leave, and most men don’t take it — even when paid leave is available — because they feel it’s unacceptable within the culture of their organization.

Likewise, “caretaking” leave still seems to be relegated more often to women. But I think men will (and should) demand more equality in this area, and that doing so will ultimately benefit and promote women’s equality in the workplace and in the home.

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