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Ask Rich: Honor FMLA federal rights

Rich Ornstein, KACo Staff Attorney
Rich Ornstein answers legal questions in County Line Magazine.

Q. We run a tight ship. Everybody is expected to do their job, and if they can’t, they get replaced. I have a longtime employee who fell off a ladder at home and got hurt. I was going to terminate her, but my magistrates went to one of your classes and said I can’t fire her until after her Family and Medical Leave Act (FMLA) time runs out. Do me a favor and quit teaching my people the law. It’s making me look bad.

A. You’re lucky your magistrates went to my class and paid attention. The Family and Medical Leave Act is a federal right. Failure to honor this right can leave employers in legal jeopardy. Due to space constraints, this article shall only cover non-military FMLA entitlements.

Is FMLA applicable to your county, local government or corporation?

To determine whether the FMLA is applicable, there are a few factors to be considered. Not all factors will be covered due to article size.

  • Do you have 50 or more employees? If you don’t, the FMLA is not applicable to you. While a public sector employer is a ‘covered’ employer for FMLA purposes, a public sector employee can still only receive FMLA benefits if there are at least 50 employees within a 75-mile radius.
  • How long has the employee worked for you? Generally, an employee must have worked for the employer for at least 12 months and at least 1,250 hours in the prior 12 months.

What is the FMLA leave entitlement?

Eligible employees can take off up to 12 weeks of job-protected leave in a year for one of these reasons:

  • Birth/adoption/foster care of a child;
  • To care for a spouse, child or parent’s serious health condition;
  • For the employee’s own serious health condition that makes him or her unable to perform the essential functions of the job; or
  • Various military-related reasons.

Note that two of the four reasons for which an employee can take FMLA leave involve a serious health condition. A serious health condition typically falls within one of these four categories:

  • Conditions requiring an overnight stay in a medical care facility;
  • Conditions that incapacitate you or a family member for more than three consecutive days and have ongoing medical treatment;
  • Chronic conditions that cause occasional periods when you or your family member are incapacitated and require medical treatment at least two times per year; and
  • Pregnancy-related matters such as prenatal medical appointments, incapacity due to morning sickness and medically required bed rest.

FMLA is not limited to injuries occurring during non- work hours. An employee injured on the job may also be entitled to FMLA leave. Generally, an FMLA eligible employee who is on workers’ compensation leave should be placed on FMLA leave concurrent with their workers’ compensation leave.

How does leave work?

Leave may be taken in a block or intermittently depending upon the circumstances. FMLA leave is unpaid leave, but either the employee or the employer can choose to require that the employee’s paid leave time run concurrent with the unpaid leave. In addition, an employer has to continue some, or all, of the employee’s benefits during the FMLA period as if the employee were working. For example, health insurance benefits continue under the same terms as if the employee were working.

Do you have to take your employee’s word that they are entitled to FMLA, assuming that he or she qualifies?

No. It is important that the employee’s FMLA be certified by a health care provider. Remember, the term health care provider includes a variety of providers, not just MDs. While you are not required to use the federal government’s FMLA forms, it is highly recommended that these forms be used by the employer. In particular, employers subject to the FMLA should familiarize themselves with U.S. Department of Labor forms

WH-380 E and F, WH-381 and 382 (

What if your employee doesn’t want to use FMLA leave?

If the employee qualifies, it is recommended that their leave be certified as FMLA leave. FMLA protects both the employee and the employer. While the employee receives job-protected leave, the employer is protected from a FMLA rights violation claim and gains some certainty regarding scheduling.

What is your FMLA year?

Is it a ‘fixed’ year? If fixed, is it Jan. 1-Dec. 31, July 1-June 30 or some other 365-day period? If not ‘fixed’, is the year a 12-month period measured forward from an employee’s first date of leave, or is it a rolling period measured backward? See Fact Sheet 28H for a FMLA 12-month period overview.

FMLA is a complicated federal law that can’t be fully explored in 1,000 words or less, the maximum size for this article. Therefore, everything has not been covered. For a more comprehensive FMLA overview, check out the U.S. Department of Labor FMLA Fact Sheets. These Fact Sheets provide general (see Fact Sheets 28 and 28A) and specific issue FMLA summaries (

What’s the goal?

The goal isn’t to become an expert but to become familiar enough with the FMLA to know whether it is applicable when faced with a potential FMLA situation. Then speak to your Human Resources Director, county attorney, Board counsel or KACo legal staff for assistance.

Call 800-264-5226 or email me at if you have questions regarding this or any other matter. And if you have suggestions for other items you’d like me to cover in County Line, let me know.


Published in County Line Magazine – April/May 2021


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