Question: Are employees affected by hurricanes and other natural disasters eligible for Family and Medical Leave Act (FMLA) leave?
Answer: It depends on the circumstances surrounding the need for leave. First, let’s review the criteria for FMLA leave.
Employers are required to grant FMLA leave to eligible employees if they employ 50 or more employees for each working day in 20 or more calendar weeks of the current or preceding calendar year. These employers must grant FMLA leave to eligible employees for up to 12 weeks in a 12-month period.
Employees are eligible if they:
- Have been employed by the employer for at least 12 months;
- Have worked at least 1,250 hours during the 12-month period immediately preceding the commencement of the leave; and
- Are employed at a worksite where 50 or more employees are employed by the employer within 75 miles of the worksite.
Reasons for FMLA leave include:
- Birth of a child of the employee in order to care for the newborn child.
- Placement with the employee of a child for adoption or foster care.
- Care for the employee’s child, spouse, or parent with a serious health condition.
- Serious health condition that renders the employee unable to perform any one of the essential functions of his or her position.
- Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military service member on active duty, or has been notified of an impending call or order to covered active duty (this is generally referred to as qualifying exigency leave) in support of a contingency operation.
- 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 (this is generally referred to as military caregiver leave or covered service member leave).
If an employee requests FMLA leave to clean up after a natural disaster, search for family, or contribute to community clean-up and rescue efforts, employers are not required to provide FMLA leave. The same holds true if an employee needs to take time off to care for children because schools are closed due to a storm or similar event.
On the other hand, if an employee is injured physically or suffers a mental illness that meets the definition of “serious health condition” and is unable to perform his or her job as a result of a natural disaster, then the employee could qualify for FMLA leave with medical certification. An employee may need to care for a child, spouse, or parent with a serious health condition who is affected by the natural disaster, a situation that could also qualify the employee for FMLA leave.
Employers should gather as much information as possible from an employee requesting leave. If an employee’s situation doesn’t qualify him or her for leave, the employer may consider a flexible arrangement that allows the employee to attend to personal matters without worry of employment termination. Unpaid leave, flexible working hours, or telecommuting are examples of arrangements that could allow an employee to recover from a disaster without jeopardizing employment status. Employers who demonstrate caring and flexibility in times of high stress for employees can be rewarded with employee loyalty and hard work.