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Jun12

Night Shift and FMLA entitlement

If an employee works 6:30 pm to 6:30 am and needs to take family member to appointment or procedure during the day i.e. an early morning biopsy does the employee qualify to take FMLA time before reporting to work either a few hours late or even miss full shift?

The federal Family & Medical Leave Act (FMLA) entitles covered, eligible employees to take up to 12 workweeks of unpaid, job protected leave in a 12 month period for specified family and medical reasons. The full leave may be taken all at once or on an intermittent or reduced schedule basis.

A covered employee is eligible to take leave to care for the employee’s covered family members including spouse, son, daughter or parent with a serious health condition. A covered son or daughter must be under the age of 18, or incapable of self care due to a mental or physical disability. Family members not covered by the FMLA include siblings, in-laws, grandparents and other extended family members unless those individuals stood “in loco parentis” to the employee when he or she was a minor. Non-family members also can be covered under the “in loco parentis” definition, which is defined as having had the responsibility of providing day-to-day care to the employee as well as for financially supporting the employee in his or her childhood. The FMLA also allows employees to take leave to care for a covered service member or veteran with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member or veteran.

An employee would be entitled to FMLA leave if a covered family member has a serious health condition. A serious health condition is defined as an illness, injury, or physical or mental condition that involves one or more of the following:
• a hospital stay of at least one night;
• incapacity of more than three consecutive calendar days (not necessarily workdays and continuing treatment by a health care provider or;
• incapacity due to a serious chronic disorder which requires periodic visits for treatment (for example asthma, diabetes, chronic back condition, multiple sclerosis);
• incapacity due to pregnancy or for prenatal care;
• long term or permanent disability (Alzheimer’s, severe stroke, terminal stages of a disease);
• an absence to receive multiple treatments for restorative surgery after an injury or to prevent a period of incapacity of more than three consecutive days.

Whether the employee is entitled to invoke FMLA rights for appointments outside of his normal working hours is debatable and must be determined by the employer. Generally, FMLA leave is provided as excused absences from work. Employees must make a reasonable effort to schedule appointments during their time off. However, if an appointment is at a time that would prohibit the employee from arriving for their scheduled shift on time any missed work time can be considered protected FMLA leave. However, an employee would not be entitled to FMLA leave for missing work time for personal reasons that don’t qualify as covered reasons under the FMLA i.e. sleeping.

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This entry was posted on Thursday, June 12th, 2014 at 9:09 am and is filed under
Labor Laws.
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