US Immigration and New York Employment Law

Family and Medical Leave (FMLA)

The federal Family and Medical Leave Act of 1993 (FMLA) gives eligible employees an opportunity to take unpaid leave for certain personal medical conditions or to take care of a family member. Eligible employees are those who worked for their employer for at least 12 months and at least 1,250 hours during those 12 months. The company you work for should also have at least 50 employees who work within 75 miles of its location.

If these FMLA eligibility requirements are complied with, you are entitled to take up to 12 weeks of unpaid leave during a 12-month period for your own serious medical conditions, or to take care of your immediate family member, who has such medical conditions. According to the law, immediate family members include parents, spouses, and children. Some states expanded this list to include domestic partners, parents-in-law, siblings and grandparents. You can also use this time for “birth and bonding,” i.e. to take a parental leave related to birth or adoption of a child.

If your company offers paid leave, you might use your paid leave first. For instance, if your company offers paid maternity leave, you may be required to use your paid maternity leave first and then, if necessary, use your 12 weeks unpaid leave.

While you are using your 12 weeks of unpaid leave your job is guaranteed. However, your employer is not required to keep for you the position you had before taking the leave. The Department of Labor makes it clear that you should be offered your previous job, or “an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.”

If you have someone in your family, who was on active duty in the Armed Forces and was injured, you can take up to 26 weeks of leave in a 12-month period to take care of that service member. To be qualified you should be the service member’s spouse, child, parent, or the nearest blood relative who has the rights of legal custody of the injured service member. Under the FMLA, both in case of 12 or 26 weeks of leave your employer must maintain the health benefits for you just as if you were working.