In what situations is FMLA leave available?

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.

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 ¶45,423 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:

1. unable to work at all, or

2. is unable to perform any of the essential functions of the position as defined under the Americans with Disabilities Act.

Servicemember family leave

An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember may take a total of 26 workweeks of leave during a 12-month period to care for the servicemember. This leave is available during a single 12-month period only.

During this single 12-month period, an eligible employee is entitled to a total leave of 26 workweeks in order to care for the injured servicemember and for all other FMLA leaves.

Next of kin means the nearest blood relative of the servicemember.

Serious injury or illness means an injury or illness incurred by the member in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating.

Qualifying exigency leave

Effective January 16, 2009, otherwise FMLA-eligible employees with a spouse, son, daughter or parent on active duty or call to active duty status in the National Guard or Reserves in support of a contingency operation may take up to 12 workweeks of leave during any 12-month period to address one or more qualifying exigencies. There is no limit on the son or daughter’s age. The call to active duty must be a federal call (not state). An employee whose family member belongs to the Regular Armed Forces (active duty servicemembers) is not eligible for leave because of a qualifying exigency.

Qualifying exigencies are:

• Short notice deployment (leave to address any issue seven or fewer calendar days before deployment).

• Military events and related activities (including arrival and departure ceremonies and briefings).

• Childcare and school activities that require attention because the covered military member is on active duty or call to active duty status (not routine events that occur regularly for all parents). This could be to arrange alternate childcare; to provide urgent, immediate childcare; to enroll or transfer a child in a new school or day care facility; to attend school or day care staff meetings due to active duty or call to active duty status.

• Financial and legal arrangements (e.g., powers of attorney, bank account signature authority, wills and living trusts, to represent the servicemember before service benefits agencies).

• Counseling.

• Rest and recuperation (up to five days per instance).

• Post-deployment activities up to 90 days after termination of active duty status.

• Additional activities as agreed to by the employer and the employee.