The Family Medical Leave Act (FMLA) entitles eligible employees who work for covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The Department of Labor maintains a comprehensive website of FMLA resources.
The Family Medical Leave Act may be a useful benefit to a family member who is the guardian of a disabled or elderly loved one or to an incapacitated individual under guardianship. To utilize FMLA benefits, a guardian or the incapacitated individual under guardianship must be employed by a covered employer and either be 1) caring for a family member who suffers from a serious health condition; or 2) the person whose employment has been interrupted by a serious health condition.
Employees are eligible to take FMLA leave if they work for a covered employer for at least 1,250 hours in the previous12 months at a location where at least 50 employees are employed by the employer within 75 miles. Federal and state governments are also covered by FMLA. While FMLA does not cover employers with fewer than 50 employees, some state laws and private employment contracts may provide similar benefits.
The Family Medical Leave Act provides for up to 12 workweeks of leave for an employee under guardianship who has “a serious health condition that makes the employee unable to perform the essential functions of his or her job. If the individual under guardianship is a family member of the guardian, FMLA can provide coverage to the guardian to provide care. Family members are defined as an employee’s spouse, child, or parent. If the individual under guardianship is a military service member with a serious injury or illness, then 26 workweeks of leave is afforded to the service member’s spouse, child, parent, or next of kin to care for the injured service member.
A serious health condition is defined by FMLA as “”an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. The serious health condition must be verified by a health care provided. The Department of Labor provides a form for this verification.
Due to the 2020 pandemic caused by the COVID-19 virus, Congress enacted the Families First Coronavirus Response Act (FFCRA) expanding the Family Medical Leave Act. FFCRA implemented public health emergency leave and emergency paid sick leave to assist working families facing health emergencies related to COVID-19 through December 31, 2020. FFCRA covers employers all employers with fewer than 500 employees. Employers must provide all employees with two weeks of paid sick leave at the employee’s regular rate of pay when the employee is unable to work because the employee is quarantined; or two weeks of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a need to care for an individual subject to quarantine, or care for a child whose school or child care provider is closed for reasons related to COVID-19. An additional 10 weeks of paid leave is to be provided when the leave is related to the employee or employee’s family dealing with COVID-19. There are tax credits available for employers who must provide paid sick leave under FFCRA.
If you are caring for or the guardian of a loved one, talk to your elder law attorney about whether or not you or your loved one can access Family Medical Leave Act benefits.
