Family Medical Leave Act (FMLA)

The Family Medical Leave Act (FMLA) provides that an employee may take 12 weeks of unpaid leave to care for their own serious health condition; the serious health condition of an approved spouse (the definition of spouse has expanded with the Supreme Court decision in Windsor), child, or relative; the birth of a child; or the adoption or fostering of a child. To be eligible an employee must have worked 1250 hours for the employer in the past 12 months. The employee must also work at a workplace where there are 50 employees in a 75 mile radius.

The FMLA requires that the employer must place an employee returning from FMLA leave into the same position they had when they left. If the returning employee can not be placed into the same position they had when they left they must be placed in a substantially similar position. The employer must keep all of the employee’s benefits current while the employee is on leave. For example the employer must keep paying their portion of the employee’s health insurance policy if that is what the employer was doing before the employee went on FMLA leave.

A serious health condition has been defined as “an illness, injury, impairment, or physical or mental condition that involves:

  1. inpatient care in a hospital, hospice, or residential medical care facility; or
  2. continuing treatment by a health care provider.

FMLA leave can be taken for the birth or adoption of a child, as well as up to 12 months after the birth or adoption to take care of the child. Parents of adopted or foster children may take FMLA leave before the placement of the child if absence from work is required to complete the placement. This may include using FMLA leave to to meet with a counselor, appear in court, confer with their attorney or the doctor representing the birth parent, receive a physical examination, or travel to another country to complete the adoption.

Employees may also take FMLA leave to address serious health conditions of minors with whom they have an in loco parentis relationship, or serious health conditions of adults who raised them in an in loco parentis relationship. This might include an aunt taking FMLA leave to care for a niece she has been raising, or a niece taking FMLA leave to care for the aunt who raised her.

The FMLA has a number of notice requirements that apply to the employer and the employee wishing to take leave. Employees must provide 30 days advance notice of the need to take FMLA leave when the need for leave is foreseeable. When 30 days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with their employer’s normal call-in procedures.

An employee can also take their FMLA leave as “intermittent leave”. This means an employee can take time to do things like attend a doctors appointment or a child’s physical therapy session without having to take time off work entirely. The time taken is counted against the 12 week leave allotment.

Employer’s are also prohibited from retaliating against an employee who took leave under the FMLA. Retaliation can include firing, change in job duties, reduction in pay, reduction in hours, change in location, or other employment actions that create a more difficult work environment.

Attorney Benjamin Kandy has successfully guided employees through a number of FMLA issues. If you have an FMLA problem in Georgia, contact Attorney Kandy.



US Department of Labor FMLA Wage and Hour Division – FMLA Information


This information is provided as guidance only and is not meant to address any individual’s specific situation. This information is not meant to create an attorney-client relationship between the reader and Attorney Benjamin Kandy or The Law Office of Benjamin B. Kandy LLC.


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