When it comes to taking a leave of absence in the United States, things can get a bit tricky. There are very few laws that require companies to offer paid or unpaid leave, and there are many loopholes that circumvent those that do. This can be especially frustrating when dealing with a medical emergency — whether it’s your own or that of a close family member. And the issue of medical leave is a hot-button topic that the US still hosts debates over while our friends across the ocean seem to have put the issue to bed, offering paid leave for many different reasons.
In the U.S., there are multiple types of leave you can take from work — most of which aren’t required or protected by federal law or a statute. These include parental leave, maternity and paternity leave, vacation leave, sick leave, bereavement leave, and religious observance leave.
The U.S. government has laws that protect a few types of leave. These include jury duty leave, military service leave, and military family leave — which is actually a part of a larger, overarching medical leave act. It’s called the Family and Medical Leave Act (FMLA). This is a 1993 labor law that requires employers to provide job protection for employees due to medical reasons beyond their control. Employees are guaranteed to have their job protected while they take unpaid leave as long as their injury or condition qualifies.
This FMLA law — administered by the US Department of Labor — allows 12 weeks during any 12-month period for an employee to take for medical reasons. Some of these reasons include adoption and childbirth, illness of a close relative like a child, parent or spouse, to recover from their own serious illness or injury, to care for an injured service member or deal with contingencies after a service member has been deployed to active duty.
In order to qualify, employees must have worked at least 1250 hours over a 12 month period prior to taking leave. That is equal to about 25 hours a week — an employee does not have to be a full-time employee to qualify. They must also give 30 days notice before taking this leave of absence.
Non-eligible situations include caring for a sick elderly relative that is not a parent, pet care, and short-term illnesses. Non-eligible workers include part-time workers that have worked fewer than 1250 hours 12 months prior to requesting leave, workers in businesses with less than 50 employees, and elected officials.
When an employee returns from medical leave, they are usually entitled to return to their same position in the same capacity as before they left and may not be terminated provided that the employee doesn't go over the 12-month limit. There is some gray area, however, if the employee is in the top 10% pay bracket.
Other rights guaranteed after taking medical leave include: group health insurance benefits and premiums; the placement in a position with the same rights, responsibilities, and stature if previous position has been occupied; benefits protection; protection from employer retaliation; occasional leave in the future for appointments and follow-ups due to the condition that caused for leave in the first place.
Medical leave is different from sick leave, as sick leave is just the number of sick days a person is allotted to take and is usually paid. These are for more common sicknesses like a cold, the flu, a bug or anything else that only requires a few days of leave. A medical leave of absence is a much longer commitment due to a serious health condition or family medical emergency.
A medical leave of absence is also different from short-term disability (STD). Short-term disability comes as part of a package with your health care provider and is not mandated by federal regulation. What you get with STD usually depends on your plan, but employees are often given temporary disability leave due to pregnancy, injury, and illness and lost wages are usually covered by insurance. Most plans range from a few weeks to 24 months.
As of 2017, only four states have enacted their own family and medical leave laws. These states include California, New Jersey, Rhode Island, and New York.
When it was first enacted, this law was a blessing for many who feared the loss of jobs, benefits, and health care providers as a result of serious illness or injury impacting them or their families. Before this, if an employee got sick and had to take an extended amount of time off, there was no guarantee that they’d have a job to return to once they recovered. Similarly, having a child or going through the process of adoption meant that families could lose their medical benefits by losing their job. It was a huge step forward in the fight for increased labor laws and workers protections.
Ever since, however, there has been little movement towards truly expanding these laws on a national scale. Some states have made amendments to the FMLA laws in their own states — expanding coverage to domestic partners, lowering the number of employees a company has to have in order to provide paid leave, and expanding coverage to other family members. Some states have also expanded what instances qualify, like donating an organ or bone marrow, grieving over a servicemember, and caring for children with non-serious illnesses.
Even still, there is a lot more to be done — but what does that mean for you in 2017?
If you’re trying to decide whether or not to use FMLA medical leave, it’s important to note that this leave is unpaid. It guarantees you’ll have a job to return to, but there may be better options for leave if you’re in need of a consistent paycheck.
For many, regular sick leave is enough time for an employee to recover from illness or injury. Many companies also offer short-term disability for a particularly rough bout of sickness and injury. Of course, you will need to check with your company health care plan. If you need time off due to a death in the family, many companies also provide employees with bereavement leave that is not included in their vacation or sick PTO days.
While your employer is required to hire you back after your leave, there is no guarantee it will be for the same job you left. The law states that your employer must offer you your original job or one of equivalent value. And that’s where there is some grey area. “Equivalent” doesn’t mean the same role or responsibilities — just, generally, the same level.
It’s good to know too that your employer may ask for proof of illness or injury. This could mean bringing in a note from your doctor detailing your condition or the condition plaguing a close family member. The federal law doesn’t require proof, but doesn’t say it’s not required either and therefore be prepared to share with your supervisor or employer the reason you are requesting a leave.
It is also important that if you’re trying to take medical leave, that you’ve worked with the company for at least 12 months before making that request. This rule is a strict one. Luckily, you can be a part-time worker (working at least 25 hours a week) and still qualify. But you can’t expect to get this medical leave if you’re a new employee — even if an emergency does indeed arise.
That’s why it’s important to understand medical leave in accordance with the Family and Medical Leave Act of 1993 as thoroughly as possible before deciding to use it. But if you understand what you’re rights are, how do you go about asking for it?
By now, you hopefully understand what goes into medical leave and your rights according to the Family and Medical Leave Act. If you are an eligible employee, make sure you understand what you’re asking for and are giving your supervisors enough notice before taking it. Also, make sure you are ready for the unpaid nature of the leave. If you are a non-eligible employee, make sure you know the qualifications of either your insurance plan if taking short-term disability, workers compensation, or you know your company policy on PTO. This will save you time and energy when it comes to talking to the higher-ups about your leave and what you’re entitled to leaving no room for hesitation or confusion.
Once you know what kind of leave you are asking for, it’s important to be truthful and upfront with how long you will need. Maybe you will need a certain amount of weeks of recovery time. Maybe your spouse is going off to active duty and you need a few weeks to get the affairs in order. Maybe you have to travel to complete an adoption. Whatever your reason, it’s important that you are honest with the amount of time needed. With FMLA, you are guaranteed 12 weeks. This doesn’t mean you need to take all 12 weeks, but letting your employer know how much time you will be gone will build trust in the professional relationship and will make it less likely that your exact position will be gone when you return. This also lets employers plan ahead and move assignments around with the knowledge that you will be back when you say you will.
Get your leave of absence letter in writing. You will be meeting face-to-face but writing it down will cut down on the conversations you will have to have going forward. When you meet with your supervisor, give them your letter. Also, send it to higher-ups and a member of the human resource team so that everyone is in the loop and understands what you’re asking for. In the letter, you should include when your leave will begin, when you will return, why you are requesting leave, what will be done with your work in the meantime, and possibly a doctor’s note.
Before you talk with anyone else, it’s important to talk with your supervisor to keep them in the loop throughout the process. They are your direct line of contact with the corporate ladder and therefore can do a lot to make the process a smoother one if you fill them in. They might also have some advice on how to approach others with this request. But as they will be responsible for what to do with your position and your work while you are gone, it’s imperative to keep them involved.
Once you’ve met with your supervisor you can take your request to human resources to clear up any benefits issues or pay issues. They will again inform you of your rights and what is afforded to you, and they will be there to answer any questions in relation to workers compensation, collective bargaining agreements, leave entitlement and any other loose ends that need tying up before you take your leave.