In what situations is FMLA leave available?

An eligible employee is entitled to leave under FMLA under the following circumstances:

the birth of a child to the employee and to care for the newborn child;
the placement of a child for adoption or foster care;
an employee's need to care for a spouse, child, or parent with a serious health condition; or
the employee's own serious health condition (including pregnancy) that makes the employee unable to perform the functions of the employee's job.

An employee who is requesting leave does not need to say any "magic words" like "I am requesting FMLA leave." It is up to the employer (usually the employee's manager or supervisor) to determine, at the start, whether a leave qualifies for FMLA protection. This information, of course, is based on information received directly from the employee (or the employee's spokesperson, like a family member, when the employee is incapacitated).

CAUTION: When an employee initially requests leave, the manager or supervisor should be careful about what questions are asked of the employee in light of the Americans with Disabilities Act. For example, questions about the nature, severity, or condition causing a disability are forbidden. It may be prudent for the manager or supervisor to ask whether the reason for the request is the birth or adoption of a child or the serious health condition of the employee or family member.

Birth, adoption, and foster care

FMLA leave is available to an employee who experiences the birth or adoption of a child or who needs to care for a newborn in the first year after birth Either the father or mother of the child may take this leave. Circumstances may require that FMLA leave begin before the date of birth. For example, an expectant mother may take FMLA leave before the birth of the child if she requires prenatal care. Similarly, an employee can take family leave prior to the actual placement or adoption of a child if an absence from work is required for the adoption or foster care arrangements to proceed.

Care of family members

FMLA leave is available if an employee is needed to care for a spouse, child or parent with a serious health condition.

Note An employer can request documentation or a statement of family relationship from an employee if FMLA leave is requested. In many cases a simple statement from an employee is sufficient, but a child's birth certificate or a court document may be required as well. However, the FMLA's definitions of family relationships are quite broad.

Spouse means a husband or wife as recognized under state law for purposes of marriage in the state where the employee resides, including common-law marriage. FMLA does not cover domestic partners (although employers could have leave policies that are broader in scope than FMLA).

Parent means a biological parent or an individual who acted in the place of a parent and assumed day-to-day parental duties and responsibilities (such as an aunt or grandparent or a family friend) when the employee was a child. However, parents-in-law are not included.

A child is a biological, adopted, or foster child; a stepchild; a legal ward; or a child of a person who acts in the place of a parent (see above). The child must be under age 18 unless incapable of self-care due to a mental or physical disability.

Being "incapable of self care due to a mental or physical disability" under FMLA means that the child requires active assistance or supervision to care for himself or herself in daily living activities, such as grooming, bathing, dressing, eating, etc.

What is a serious health condition? A serious health condition exists if the employee, or the employee's child, spouse, or parent has an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. Use the guidelines at 15,425 to determine whether an absence can be attributed to a serious health condition.

Medical certification of a serious health condition may be required. see "When is medical certification required?" at 45,426.

What sort of "care" is needed? In order to take leave to care for the employee's spouse, child or parent with a serious health condition, the employer may request certification from the health care provider that the employee is "needed to care for" the family member. The phrase "needed to care for" includes physical and psychological care as well as situations in which the employee is needed to fill in for others providing care or to make arrangements for changes in care, such as a transfer to a nursing home.

Employee's own serious health condition

An eligible employee may take leave under the FMLA because of a serious health condition that makes the employee unable to perform the functions of the employee's position. An employee is considered unable to perform the functions of his or her position if a health care provider finds that the employee is either: