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Family Medical Leave Act

The Family and Medical Leave Act (FMLA) covers employees who have worked for their employer at least 12 months and who have worked at least 1,250 hours over the past 12 months. These employees must work for a company that employs 50 or more employees within 75 miles.

All covered employees are allowed up to 12 weeks of unpaid, job-protected leave per year. Some companies use a method for calculating the “year” with a “rolling calendar method.”

FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women. It also requires that their group health benefits be maintained during the leave.

FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

  • for the birth and care of the newborn child of an employee;
  • for placement with the employee of a child for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.

Time taken off work due to pregnancy complications and Worker’s Compensation accidents can be counted against the 12 weeks of family and medical leave.

On November 17, 2008, the Department of Labor (DOL) published its final rule to implement the first-ever amendments to the Family and Medical Leave Act (FMLA) in 15 years. The final rules took effect on January 16, 2009. These new rules implement new military family leave entitlements and improve communication between employees, employers, and health care providers to make the law operate more smoothly, and provide needed clarity for both workers and employers about their responsibilities and rights under the FMLA leave.

On October 28, 2009, President Obama signed into law expanded coverage for “qualifying exigency” leave to eligible employees with covered family members in the Regular Armed Forces and coverage for “military caregiver leave” to eligible employees who are the spouse, son, daughter, parent, or next of kin of certain veterans with a “serious injury or illness.” Now, a covered employer also must grant an eligible employee who is a spouse, son, daughter, parent, or next of kin of a current member of the Armed Forces, including a member of the National Guard or Reserves, with a serious injury or illness up to a total of 26 workweeks of unpaid leave during a “single 12-month period” to care for the service member. For specific information regarding military family leave, you may wish to read “Fact Sheet #28A:  The Family and Medical Leave Act Military Family Leave Entitlements.”

Two months later, on December 21, 2009, President Obama signed the Airline Flight Crew Technical Corrections Act, which enhances FMLA eligibility requirements for flight crew members.

It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA.

Attorneys of the Upstate Law Group are experienced in FMLA matters. Ms. Kern-Fuller is a frequent lecturer at Continuing Legal Education seminars on the topic of the FMLA. She has offered dedicated and assertive employment law guidance and advocacy to South Carolinians for more than 7 years on a variety of employment law matters, including FMLA.


Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either:

  • Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, including any period of incapacity (i.e., inability to work, attend school, or perform other regular daily activities) or subsequent treatment in connection with such inpatient care; or

  • Continuing treatment by a health care provider, which includes:
    1. A period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also includes:    
      • treatment two or more times by or under the supervision of a health care provider (i.e., in-person visits, the first within 7 days and both within 30 days of the first day of incapacity); or
      • one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy); or

    2.  Any period of incapacity related to pregnancy or for prenatal care.  A visit to the health care provider is not necessary for each absence; or
    3. Any period of incapacity or treatment for a chronic serious health condition which continues over an extended period of time, requires periodic visits (at least twice a year) to a health care provider, and may involve occasional episodes of incapacity.  A visit to a health care provider is not necessary for each absence; or
    4. A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective.  Only supervision by a health care provider is required, rather than active treatment; or
    5. Any absences to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than three days if not treated.


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