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December 12, 2006 > Watercooler Counsel

Watercooler Counsel

by Rich Proulx & Malinda Tuazon

Fun with the Family Medical Leave Act

Q: One of my employees just told me he needs to take leave because one of his family members is ill and he’s the only one able to serve as caretaker. What are my responsibilities to this employee? He’s a good worker and I’d love to keep him on, but I can’t have someone out for an indefinite amount of time!

Leary about Leave
Milpitas, CA

A: Well, that all depends. The federal Family Medical Leave Act (FMLA) is the law that is most relevant to your situation. It has lots of loopholes, such as it only affects employers with at least 50 employees and the employee has to have worked at least 1,250 hours within the 12 months prior to the request. The FMLA grants an employee up to 12 weeks of leave within a 12 month period (a “year”) to deal with his or her own serious health issue or care for a relative with a serious health condition. Here’s where it gets tricky, that 12 month period doesn’t necessarily need to begin and end on a calendar or fiscal year. Also, I should warn you that many states have passed their own family-friendly leave acts, that have their own quirks. (Alaska’s version grants up to 18 weeks of leave.)

To qualify for FMLA your employee needs to be sure he’s caring for the right family member. An employee may only be granted FMLA leave to take care of an immediate family member (i.e. spouse, child or parent). In-laws don’t count. Cousins don’t count. Children over the age of 18 don’t count unless they are incapable of self-care. You, as the employer, have the right to request verification of the health condition and even request periodic updates on the condition.

For employees who are out to deal with their own health conditions, it is also lawful for an employer to request a “fitness-for-duty” certification before the employee returns to work. But remember that you may still need to accommodate an employee under the ADA, so a “100% fit-for-duty” requirement is illegal.

Perhaps the most exciting news for you is that there is no requirement that the leave be paid leave. That’s up to you as long as your policy is consistent with all employees needing to use FMLA leave. Phew! Well, we’ve done our best distilling a ton of FMLA information into a few hundred words, so we suggest you contact the Department of Labor ( or (866) 4-USWAGE) with any specific questions about extended medical leave. Good luck!

Q: I’m out on paternity leave and have another two months before I expect to return to work. The scuttlebutt around the office is that there are going to be layoffs within the next few weeks. I can’t be laid off while I’m on leave, right?

Fearful New Father
Newark, CA

A: The good news is that the FMLA also grants up to 12 weeks to employees for the birth of a child or placement of a child for adoption or foster care. The not-so-good news is that your employer may still carry out any personnel actions necessary for business regardless of whether you’re on leave. Think about it, if employees were protected from lay-off while on medical leave, don’t you think there would be a sudden surge in the number of people “coming down with something” as soon as the lay-off rumors started flying? As long as your employer is using a nondiscriminatory method to determine who gets laid off (e.g. poorest performers, most recently hired, highest paid) and the layoff doesn’t have a disparate impact on any protected group of people, then the company is still allowed to swing the axe.

Our team of government experts won’t love taking leave from their day jobs to answer your questions. According to a study commissioned by, one in three Americans admits to calling in sick when feeling fine. The #1 reason given for such deviant behavior was RELAXATION. Send your questions to

Rich is a former supervisory investigator and Malinda is a current investigator for the Equal Employment Opportunity Commission, Identifying information in the questions may be fictional.

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