FMLA- Expanding the Reach

Author: Yana A. St. Clair, Esq.

FMLA- Expanding the Reach

As we discussed in the previous issue of the magazine, under FMLA most Federal employees are permitted to a total of up to 12 workweeks of unpaid leave during any 12-month period. In 2013, the United States Supreme Court ruled as unconstitutional Section 3 of the Defense of Marriage Act (DOMA) - the portion dealing with federal recognition of any marriages between gay or lesbian couples. ( This decision of the high Court is a serious enhancement of the FMLA and provided the legal ground for the extended benefits shown below.

Definition of family member: One of the greatest achievements of the FMLA is probably the more opportunities an employee may have when it comes to taking care of close ones. These opportunities stem out of the mere definition of family member. This broader definition covers a wide range of relationships, including not just the first of kin:

  • Spouse - including same sex and opposite sex couples
  • Parents - including parents-in-law, step parents, foster parents, and  grandparents
  • Children - including step and foster children, and grandchildren
  • Brothers and sisters

The definition goes further covering guardianship relationships, which is a really lavish and thoughtful expansion of peoples’ personal contacts and associations.  The extended benefits include protection of job positions, as well as equal, or substantially similar premiums and professional standing. (OPM/Leave Policies).
The full list of family members covered by FMLA that can give an employee the right to demand sick leave for family care can be found at the States Office of Personnel Management (OPM) web site.

Maternity: Pregnancy and childbirth is a condition that is certainly protected by the provisions of the FMLA. In addition to the time spend in hospital, “according to the definition of serious health condition any period of incapacity due to pregnancy or childbirth is considered a serious health condition, even if the family member does not receive active treatment from a health care provider.” (OPM/Pay & Leave).  An employee is entitled to use sick leave for the period of the birth mother's incapacitation, if caring for a family member following childbirth. However, medical leave may not be granted for caring of a healthy child, or toddler.

Requirements for supporting documents:  Most companies may require well in advance a notice of the intent to leave, and a medical document certifying the reason and the necessity for the medical leave.  Establishing consistent rules and following the same documentation requirements for all, may alleviate conflicts of interest, and abuse of authorities.
Each agency is entitled to its own rules and regulations regarding the character and the need of supporting evidence for the requested medical leave. Thus, it will be safe and practical for an employee to check the specific policies of their company. (OPM/Pay & Leave).

The care of a family member has a very soft definition and in some circumstances may include not only physical care, but psychological comfort as well, especially related to a family member with a very serious health condition. This care may be needed during hospital treatments and stay. Companies may ask for medical personnel’s statements explaining the need of such care. Such a certificate should certify the need of:

  • The psychological comfort and/or physical care
  • Patients benefit of such care
  • The amount of time needed

The FMLA provided the long needed job-protected leave of absence, however it is an unpaid leave, and some critics of the law consider it not sufficiently effective. This and other arguments related to FMLA will be addressed in the next issue of the magazine. 


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