Who is Considered an Immediate “family member” for purposes of taking FMLA Leave?

posted by Daniel Stevens  |  Mar 6, 2019 6:38 PM [EST]  |  applies to California


Leave of absence form


As if working hard for that promotion or striving for better shifts wasn’t hard enough, what happens when the unexpected throws you off course? Becoming extremely ill,  being injured in an accident, being called to duty overseas, or needing to care for a sick loved one, these are all situations that have the potential to pop up unexpectedly in an employee’s career.  Also, some employees join the workforce with a disability and may need time off sporadically to maintain their health.  Generally, these occurrences are out of the employee’s control but does this mean that their career is over?  Is an employer allowed to dismiss an employee who needs time away from work when the unexpected strikes?  Does an employee have any rights when it comes to needing time off from work?


                A Leave of Absence Lawyer is the type of legal professional who specializes in answering the type of questions that arise when an employee needs to take a leave of absence, has already taken the leave, or is currently on leave. There are federal and state statutes that regulate employee leaves, therefore taking leave can be complex for the employee as well as the employer in understanding what is permitted and prohibited by law.  Unfortunately, employers sometimes violate the rights that are given to employees by one of these federal or state statues by demoting the employee,  removing the employee from the work schedule, or even firing the employee.  This can be frustrating for an employee and can also be detrimental to their career and financial situation.  If an employee does find themselves in a situation where they have been treated adversely by their employer because they took a leave of absence, a Leave of Absence Lawyer may be able to represent the employee in legal proceedings. 


What is FMLA leave?


In modern times, Congress took notice of the way in which family dynamics were evolving in that more adults who had families were entering the workforce. With this in mind, it was also noticeable how behind employers were as their policies remained rigid and lacked compassion for employees who may need to take a leave of absence. In order to remedy this imbalance, the FMLA was enacted. FMLA stands for Family and Medical Leave Act and is a federal act.


The Family and Medical Leave Act was created to encourage adults to feel confident in their pursuit to maintain a job while meeting the needs of family life simultaneously. The FMLA provides rights and the parameters of those rights such as the amount of leave an employee may take, what situations call for a leave, information on military leave, medical leave requirements, information on paid and unpaid leave, information on re-entry, and how employee rights are enforced.


Keep in mind that in California, the California Family Rights Act (CFRA) is the state law that regulates leaves for employees.


Who is entitled to a leave of absence?

Being an employee is a start for whether or not an individual is eligible for FMLA leave, but there are additional requirements. The employee must have had their job at the company for no less than12 months from the date of when the leave of absence began. In addition to the 12-month minimum employment, the employee must also have logged a minimum of 1250 hours of work during those 12 months prior to the leave of absence being taken. Lastly, in addition to these two requirements, the employee must prove that they meet what is known as the 50/75 standard. This means that the employee must show that there was a minimum of 50 employees within a 75-mile radius of the job site where the particular employee was working before they took their leave.


Each case is unique and requires a critical analysis of the facts, therefore it is beneficial to contact an Employment Lawyer who has experience in leave of absence cases. It is always best to obtain a free consultation rather than deciding on your own that you do or do not have a case.


Who is Considered an Immediate “family member”


In taking a leave of absence to care for an ill family member, an employee must know that a protected leave does not cover all family members. A protected leave to care for a family member extends to a parent, child, or spouse. It does not extend to siblings. Also, in some cases, it may extend to an employee who is the legal guardian of the individual who is in need of their care.


What reasons are considered valid for taking a leave?


An employee’s leave may be protected by the law if the employee suffers from a severe illness or health condition, or a spouse, parent, or child suffered from a severe illness or health condition. Another reason that provides a protected leave would be for the birth of a child and or to take care of the child after birth. Also, if an employee adopts a child or takes in a foster child, the initial placement of the child in that employee’s care is protected if the employees need time off for this process.


If an employee’s spouse is in the armed forces currently serving in operational work and an emergency arises out of being on active duty, an employee may have a protected leave. Lastly, an employee may take protected leave to care for an injured member of the armed forces or veteran, or to care for them while they are in the process of rehabilitation.


                As an employee in California, it is imperative to know your rights in the workplace. Taking a leave of absence can be disruptive but it should not cost an employee their job or career based simply on taking the leave. While FMLA remains in place to protect employees, employers today still attempt to violate these rights, therefore the need for Employment Lawyer remains.  If you took a leave of absence and lost your job shortly after or perhaps you were fired upon submitting a request for a leave of absence, you may have a claim against your employer.  

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