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Advice

Legally Speaking

by Roger V. McCaffrey-Boss - July 29-August 4, 2010

New Job Rights Under
the Family and Medical Leave Act

Q: My girlfriend was just called up to active duty in the military and will be heading off out of the country. She has two small children who we both take of, but I have not co-adopted. It turns out that our youngest child has medical problems that require me to take time off of work. I know I won’t get paid if I take off but I want to know I have my job when I return.

A: Past articles have discussed the employment rights the Family and Medical Leave Act (FMLA) affords to those individuals who are HIV-positive. The law grants up to 12 weeks per year of unpaid leave to permanent employees for a “serious health condition,” the birth or adoption of a child or to care for a “spouse, child or parent” with a serious health The law applies to anyone who works for a company with 50 or more local employees, has worked there at least 12 months and during that time worked at least 1,250 hours. “Serious health condition” involves the worker’s own health condition and applies regardless of sexual orientation, nature of the illness or how the health condition arose. It can be a condition that is temporary, chronic or incurable.

The leave is 12 weeks per year. For medical problems you can take intermittent leave. Persons with chronic illnesses such as AIDS are entitled to take intermittent leave or work on a reduced schedule if this is medically necessary.

Another section of the law permits taking a leave to help assist in the recovery of a “family member,” such as a spouse or parent. The law makes no provision for “significant others” or non-marital partners, and in that sense the law is discriminatory. If you wish to take a leave for the purpose of tending to the health concerns of your partner, you would have to negotiate it with a sympathetic boss, but you couldn’t demand it under the law.

As for taking care of children, eligible employees are entitled to take up to 12 work weeks of unpaid leave during any 12-month period for the birth and care of their own newborn child, to adopt or assume care for a foster child or to care for their own child with a serious health condition. Recently, however, the U.S. Department of Labor (DOL) clarified that an employee who assumes the role of caring for a child is entitled to take family leave, despite the fact that the employee may not have a legal or biological relationship with the child.

The clarification ensures that anyone who steps in to parent a child will not be denied leave simply because he or she is not the child’s legal guardian. Among others, the clarification specifically benefits families in the gay, lesbian, bisexual and transgender community who may not otherwise have the protections of the FMLA to care for their loved ones. Similarly, the DOL anticipates that, for example, extended family members who care for a child whose single parent is called to active military duty or grandparents who care for children whose biological parents are absent will have the opportunity to enjoy the protections of the FMLA, which ultimately provides children with the support and care they need from the persons who have assumed those responsibilities.

When the family leave is up you are entitled to get your same job back or an equivalent job with the same pay, benefits and terms of employment. Employees keep their seniority and any credits they’ve built towards a pension.

You also get to keep your employee benefits such as group health and disability insurance on the same terms as before. But employers can decide whether to continue your group life insurance, accrued vacation time and other benefits. You may be asked to pay your health insurance benefits.