September 20, 2021

What Types of Events Qualify for Leave Under the FMLA Part 1 of 2

In the last article, we covered the Family and Medical Leave Act (FMLA) and does it apply to your city. If FMLA does apply to your city, you need to understand the five events that will qualify an employee for this type of leave. This article focuses on the three that are not military-related, which will be reviewed in the next article. The first three qualifying events that provide 12 weeks of leave are:

  1. The birth or adoption of a child. This applies to eligible employees if the child is under 18 or is incapable of self-care because of a disability. The entitlement to leave expires 12 months from the date of birth or placement of the child. However, if both parents work for the same employer, the employer may require that they split the 12-week allotment between them.
  2. The care of an immediate family member with a "serious health condition. " Family members include a child, spouse, or parent. The term "child" can include someone other than the employee's offspring if the employee stands in the place of a parent. Likewise, "parent" includes any person who stood in the place of a parent to the employee when the employee was a child. Spouse means a husband or wife as defined or recognized in the state where the individual was married and includes individuals in a same-sex marriage. Spouse also includes a husband or wife in a marriage that was validly entered into outside of the United States if the marriage could have been entered into in at least one state. 
  3. An employee's own "serious health condition. " The employee must be unable to perform the essential functions of the job.
  • The term "serious health condition" for purposes of FMLA is defined as any period of incapacity that involves:
    • Inpatient care or one night in hospital; or
    • Continuing treatment by a health care provider, such as: 
      • Three or more absences coupled with two or more visits to a health care provider that occurs within 30 days of the beginning of the period of incapacity, and the first visit to the health care provider takes place within seven days of the first day of incapacity; or more than three consecutive, full calendar days of incapacity plus a "regimen of continuing treatment." The regulations clarify that the first visit to the health care provider must take place within seven days of the first day of incapacity (i.e., physical therapy, broken bones, COVID); 
      • Pregnancy or prenatal care (including severe morning sickness); 
      • Chronic serious health condition requiring periodic visits (at least two visits per year) to a health care provider (i.e., diabetes, epilepsy); 
      • A condition requiring permanent or long-term incapacity which may not be responsive to treatment and requires continued supervision of a health care provider (i.e., stroke or a terminal disease); 
      • Receiving or recovering from multiple treatments for restorative surgery after an injury or for a condition likely to result in more than three days incapacity without such treatments (i.e., cancer or arthritis); or
      • Treatment for substance abuse by a health care provider.

Mark your calendars and register for a webinar on the Intersection of FMLA, ADA, and Workers’ Compensation on Wednesday, October 27. For questions on FMLA or other personnel-related matters, contact Andrea Shindlebower Main, KLC personnel services manager.