In May of 2022 the United States Department of Labor (DOL) issued a directive which indicates when employees are eligible for leave under the Family and Medical Leave Act (FMLA) due to one’s own medical condition or a familial health condition. FMLA allows leave from work when an employee is dealing with a serious medical condition. A serious medical condition is defined as “requiring impatient care or continued treatment from a medical provider.”
Under FMLA, medical leave is allowed in many different scenarios. The DOL listed all applicable scenarios when medical leave is allowed, and what is required to obtain medical leave. The first scenario described by the DOL allows FMLA for an employee’s own serious medical condition. An employee may apply for FMLA leave when they have their own serious medical condition that affects the employees from performing job duties.
The second scenario pertains to caring for a family member with a serious medical condition. DOL allows FMLA leave in this case as the employee applying for leave may provide psychological comfort and reassurance for the sick family member. If the family member is a child, FMLA will only be granted when the child who has a serious medical condition is under the age of 18.
The third scenario is when the employee has an adult child with a serious medical condition. An employee may only apply for FMLA leave under this scenario when the adult child is unable to take care of themselves because of a mental or physical disability. The point at which the adult child develops the mental or physical disability does not matter, as it will not affect the employee’s ability to receive FMLA leave.
The last scenario consists of military caregiver leave for a serious medical condition. FMLA allows up to 26 work weeks of FMLA leave when a covered service member or certain veterans suffer from a serious medical condition. A caregiver is eligible to file for FMLA leave when the service member is a spouse, child, parent, or next of kin to the caregiver. Lastly, an employer may request certification from an employee for FMLA leave pertaining to a service member or veteran. The employee may receive certification from the Department of Defense, Veteran Affairs, or from TRICARE health care provider.
Lastly, the DOL states in their directive that employers are required to keep all employee medical information confidential. Furthermore, employers must store their routine personnel files separately from the medical records. However, Managers and supervisors are entitled to know when an employee is on FMLA leave. If an employee believes they have a claim against their employer for preventing the employee from taking FMLA leave, the employee may file a claim with the Wage and Hours division of the DOL. Employees may also file a private lawsuit against their employer if they prefer that route as well.
To read the Department of Labor Guidance, click here.
To read the Department of Labor FAQ, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.