HR Diva weighing in here:
The FMLA was passed to protect the employment of employees who have a serious health condition, a dependent child with a serious health condition, a spouse with a serious health condition, a parent with a serious health condition or who are out due to the birth, or placement of an adopted or foster child. You need to be employed for 12 months (not necessarily continuous months) and have worked 1250 hours in the last 12 months to be eligible. And you have to work for an employer with 50 or more employees in a 75 mile radius. An eligible employee is entitled to up to 12 weeks per year. The definition of 12 months can vary--it is up to the employer to designate it. Most choose a rolling 12 month definition, but some choose a calendar year.
That being said, a serious health condition requires either an overnight stay in a hospital or treatment of a condition by a medical provider that results in a period of incapacity that exceeds three consecutive calendar days. Then we get into subsequent treatment by a health care provider for the same condition, pregnancy, chronic conditions, etc. If the doctor doesn't certify it as a serious health condition, then the employer doesn't have to grant you the job protection rights under FMLA--the normal sick leave policy applies. The classification of a "serious health condition" is a grey area and the subject of much litigation. A cold or flu is not a serious health condition. But if it leads to pneumonia it may be.
An employer must send the notice regarding the employee's rights and obligations under FMLA to the last address on record. This includes notifying the employee of the deadline for submission of a medical certification, requirement to pay health insurance premiums and the need to submit a fitness for duty note before returning to work. If an employer fails to provide notice in accordance with the provisions of this section of the law, the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice.
An employer has the right to request medical certification to confirm the existence of the serious health condition. The employer must give you at least 15 days to return the medical certification. Failure to return the certification could result in the denial of leave under FMLA. Once the certification is returned and leave begins, the employer can ask for a re-certification after 30 days. All the health care provider has to do is certify that it is a serious health condition. The specific nature of it does not have to be disclosed. All the employer is entitled to know is the expected duration of absences. An employer cannot converse with your health care provider regarding the serious health condition under FMLA. However, a health care provider representing the employer may contact the employee's health care provider, with the employee's permission, for purposes of clarification and authenticity of the medical certification.
Once leave is granted under FMLA, the employer cannot count that leave toward any disciplinary actions and must maintain your health insurance as if you were an active employee (that means you would have to continue your share of the premiums--but no more than that). However, if while on FMLA business decisions that would have been made require the loss of the job, it is allowed. So, if while you are out, the company discovers that you violated a conduct policy (such as theft) that would have normally caused you to be terminated, they can do so. And if the company down sizes and would have normally laid you off, they can do so--but that's tricky because they have to be able to show that they didn't just choose the person because they were out on FMLA.
After the birth of a child, if the employee returns before the 12 weeks are used up and then requests intermittent leave to extend the leave, the granting of intermittent leave for that purpose is at the complete discretion of the employer. Intermittent leave used for a serious health condition is not up to the discretion of the employer, but it needs to be scheduled at a time that is convenient to the employer for business purposes.
I hope this helps...
HR Diva
