FMLA Needs in the Child Care Industry

Under the Family and Medical Leave Act, the basic leave entitlement for covered employees allows up to 12 weeks of unpaid protected leave for incapacity due to a serious health condition, pregnancy, childbirth or prenatal medical care, care for a child after birth, adoption, or fostering. It may also be used to care for a partner, spouse, child, or parents who are seriously ill. Employees may also choose to use accrued paid leave in conjunction with family and medical leave. Leave does not have to be taken in one block, but can be used intermittently. However, an employee must work with their employer to schedule leave for planned medical treatments.

Both employees and employers have certain responsibilities during the Family and Medical Leave process. Employees must provide 30 days’ notice where possible. Although employees are not required to give details regarding a diagnosis or health issues, they must provide enough information for employers to make a decision as to whether the employee is eligible for FMLA. Employers must inform employees if they are eligible for FMLA and, if not, the reasons for non-eligibility.

Special laws apply to employees who are part of military families, and there are special hours of service eligibility requirements to airline flight crew employees. However, typically employees are considered to be covered if they are employed by a company with employees 50 or more workers, either in one location or two or more locations which are within a 75 mile radius of each other. The employee must also have worked for the company for 12 months prior to the request or 1,250 hours within those 12 months. This twelve month period does not need to be consecutive. Laws and definitions may vary by state. For example, the Pennsylvania Family and Medical Leave Act, allows an additional six weeks of unpaid, job-protected leave to care for a grandparent, grandchild, or sibling, if they do not have a spouse living, a child over 17 years of age, or parents less than 65 years of age.

Employees must not interfere with the employee’s request to take FMLA. Such interference includes refusal of leave or discrimination based on the request, such as overlooking an employee for promotion or changing an employee’s recorded hours to interfere with their eligibility.

Companies such as the child care industry must be aware of the FMLA and how they apply to their particular industry and state. Similarly, an awareness of definitions, such as what constitutes a serious health condition, what constitutes an immediate family member and what medical certification or records their employee is required to provide are important considerations. Employers must be able to accurately identify situations in which their employees may be eligible for leave, be able to handle the leave process and comply with the requirements. If not, this can lead to time consuming and costly litigation. In 2008, a jury awarded an employee $2.2 million due to the employer’s violation, illustrating the importance of employers to be knowledgeable of this act.

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