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Steven E. Springer May 11, 2016

Serious illnesses and medical events are physically and mentally taxing on anyone involved. When it is an employee or their family member that needs medical attention, focusing on the road to recovery should be the number one goal and they should be able to do this without fear of losing their employment status. These are rights that are ultimately protected federally by the Family and Medical Leave Act (FMLA) that all qualified employers are required to offer.


The Family and Medical Leave Act is a law passed on February 5, 1993 that requires employers to provide families with job-protected leave for qualified medical and family necessities. It is not required to be paid leave and is available for extenuating circumstances, such as:

  • Personal or family illness;

  • Pregnancy/childbirth;

  • Adoption;

  • Military family leave; and

  • Foster care child placement.


Based on the federal law, not every employer is required to offer this. Small businesses with less than 50 employees are exempt as it may be detrimental to business operations. For businesses with more than 50 employees, public agencies, elementary and secondary schools, there are a few actions that must be taken in order to ensure compliance with the law. A few of the requirements are:

  • Posting appropriate signage of the FMLA laws;

  • Notifying literate employees in writing, typically in the hiring packet but if no hiring packet or handbook is given, then a sheet outlining the FMLA will suffice;

  • Establish the one year (12 month) employment measuring guideline and communicate it with your employees;

  • Review all of the employment policies and procedures to ensure compatibility with the law;

  • Determine the circumstances in which an employee can substitute paid leave with the medical leave;

  • Ensure that your benefits comply with those offered federally with the FMLA, they can offer further benefit but, at minimum, must comply with FMLA;

  • Establish a procedure in which to collect insurance premiums as they are still to be available during the leave; and

  • Keep all medical information in a confidential file away from the employment paperwork.


Employees are not able to take indefinite leave and be able to continue employment. There are regulations as to when they can apply and when they qualify. Points that must be met before eligibility begins are:

  • Must be employed with the company for a minimum of 12 months; and

  • During that year, employee must have worked 1,250 hours.

After qualification minimums have been met, the following leave times are approved federally:

Twelve (12) workweeks in a 12-month time period are offered for:

  • Birth and care of the employee's child, within one year of birth;  

  • Placement with the employee of a child for adoption or foster care, within one year of the placement;

  • Care of an immediate family member to include spouse, child, or parent who has a serious health condition;

  • For the employee's own serious health condition that makes the employee unable to perform the essential functions of his or her job; or

  • Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the U.S. National Guard or Reserves in support of a contingency operation.

Twenty-six weeks of leave are offered out of a 12 month period to care for a service member who has been injured if the employee is the spouse, son, daughter, parent, or next of kin of the service member.

The full guidelines and regulations are extremely detailed. While this may offer basic necessities to have a fair understanding of what the law entails, the law goes well beyond the scope of this article. In order to protect yourself and your business by ensuring you are in compliance with the state and federal Family and Medical Leave Act regulations, it would be beneficial to consult with an experienced attorney. If you are interested in speaking with a proven Alameda County business attorney, the Law Offices of Steven E. Springer have over 30 years of combined experience and offer reliable and affordable representation to the Morgan Hill, Fremont and San Jose area. Call us today at 408-779-4700 for your free 20 minute initial consultation.