Do you have employees requesting to take a leave of absence for a serious health condition? Do you know your obligations under the Family and Medical Leave Act (FMLA)? Do your employees know their own rights and responsibilities?
In a CER webinar titled “Leave Management in California: The Rx for Dealing with Pesky Intermittent Leave Headaches,” attorney Robert Orozco outlined some of the guidelines to help employers understand what qualifies as a “serious health condition” and what their obligations are under the law.
Leave of Absence Basics
The Family and Medical Leave Act (FMLA) is a 1993 federal law. The California Family Rights Act (CFRA) is the California equivalent.
“The main legislative intent was to provide fair and equitable treatment for all employees when they’re faced with a family crisis.” Orozco explained. There are both medical and military components to the allowed leaves of absence under the FMLA.
In order for an employee to be eligible for an FMLA leave of absence, he or she must have had 12 months of employment with the company and have 1,250 hours worked in the 12 months immediately preceding the date of leave is to begin. Once qualified, the employee may take up to 12 weeks of medical and/or qualifying exigency FMLA within the calculated year. (The year could be a fixed year such as the calendar year, it could be a rolling year, or it could be a 12-month period looking forward or back from the date of the leave request.) FMLA also provides up to 26 weeks of military caregiver leave in a 12 month period. The leave in either case can be taken either continuously, intermittently or as reduced scheduled leave.
There are several qualifying reasons for FMLA leave, under which an employer must grant the leave of absence:
- Birth of child and to care for a newborn
- Employee’s own “serious health condition”
- Placement of child for adoption or foster care
- Care for the employee’s spouse, child, or parent with a “serious health condition”
- Qualifying exigency for covered military member
- Care for ill or injured covered service member
What Constitutes a Serious Health Condition and Continuing Treatment?
As we see above, taking a leave of absence for a serious health condition (either of the employee or the employee’s spouse, child, or parent) is a primary reason to take an FMLA-qualifying leave of absence. So, what is a serious health condition as defined by the law? What constitutes continuing treatment? Orozco gave us some further definitions for each of these terms.
A serious health condition can include inpatient care, incapacity and treatment, or any period of incapacity due to pregnancy and prenatal care, chronic conditions, and permanent or long-term conditions.
Continuing treatment, on the other hand, refers to an “incapacity of more than 3 calendar days and treatment.” Orozco explained. These definitions were updated about 3 years ago.
- Treatment two or more times by a health care provider within 30 days of the first day of incapacity
- Treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of a health care provider
- First visit must be within 7 days of the first day of incapacity
Chronic conditions include something that requires two or more visits to a health care provider per year. Examples include:
- Pregnancy or prenatal care
- Permanent or long-term conditions for which treatment may not be effective, i.e. terminal stages of a disease
- Multiple treatments, i.e. physical therapy or severe arthritis
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Attorney Robert Orozco is counsel in the Los Angeles office of Ford & Harrison LLP. He concentrates his practice on the representation of employers in labor and employment law matters and has defended employers in a variety of matters including Title VII, First Amendment, sexual harassment, discrimination, wrongful termination, retaliation, ADA, FMLA, CFRA, B&P 17200, and class-action matters.