Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

To be eligible for FMLA protections, an employee must satisfy 2 requirements: (1) the employee’s
position must qualify, and (2) she or he must take leave for a proper reason. For an employee’s position to
qualify for FMLA protection, the employee must:
• Work for an employer with at least 50 employees
• Have worked for the employer for at least 12 months
• Have worked at least 1,250 hours over the previous 12 months
• Work at a location in the United States (or in any U.S. territory or possession where at least 50
employees are employed by the employer at a single work site, or at multiple work sites within a
range of 75 miles)
If those requirements are satisfied, then an employee is eligible for FMLA leave. However, leave does not
fall under FMLA’s protections unless the employee takes it for a proper family or health reason. Proper
reasons for FMLA leave are:
• To heal from a “serious health condition”
• To aid a child, spouse, or parent in healing from a “serious health condition”
• Birth of the employee’s child
• Placement of a child with the employee for adoption or foster care
In addition, for the purposes of FMLA, “serious health condition” has a very specific definition: an illness,
injury, impairment, or physical or mental condition that causes incapacity and requires either or both (1)
an overnight stay in a hospital or similar facility or (2) “continuing treatment” by a health care provider
(29 C.F.R. § 825.114 (1995)). Further, “continuing treatment” is treatment that satisfies one of the
following conditions:
• Pregnancy
• A condition causing incapacity and an inability to work for three or more days that requires two or
more visits to a health care provider or one visit and a regiment of treatment
• A chronic condition continuing over an extended period of time requiring periodic doctor’s visits
and which may cause episodic incapacity
• Absences to receive multiple treatments for an illness or injury which would cause a period of
incapacity of more than three days if not treated
Thus, in summary, FMLA protections will extend to eligible survivors who work for covered employers
and who take leave because of a serious health condition, a family member’s serious health condition, or
the birth or adoption of a child. If a survivor suffered an injury from the assault or mental or emotional
trauma requiring treatment, she or he may be eligible to take FMLA leave. Employees will need to provide
documentation of any condition requiring FMLA leave. Note, however, that survivors cannot use FMLA
leave for purposes other than those listed above, like court dates. To determine whether an employee’s
physical or mental injury is a “serious health condition,” refer to the definitions set out above.
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