FAMILY AND MEDICAL LEAVE ACT (FMLA)
Medical emergencies, health conditions requiring treatment and recovery, and the birth (or adoption) of children are life events which occur within many households. Also, our armed forces service members often receive active duty assignments that cause exigent circumstances within the family unit. The Family Medical Leave Act (FMLA) is a federal law that provides employees time off from work without losing their jobs and other benefits when these events occur. Determining whether the FMLA applies to you and your employer and whether your particular situation is a ‘qualifying’ circumstance entitling you to rights and benefits is very fact specific and can be complicated. Swartz Law has the knowledge and experience to assist you in navigating the FMLA process.
Who is entitled to FMLA coverage?
The FMLA protects only ‘eligible’ employees who work for ‘covered’ employers. An employer is ‘covered’ and required to comply with the FMLA if the company has at least 50 employees working within a 75-mile radius. An employee is ‘eligible’ if he or she worked for the employer for at least 12 months and worked at least 1250 hours in the 12 month period preceding the leave. The 12 months of employment need not be consecutive. These requirements leave many employees working at small companies and part-time employees or those newly hired not protected by this law. If you fall into this category there may be other state or federal laws that apply to your situation.
FMLA Qualifying Circumstances
The FMLA provides ‘eligible’ employees time off from work for:
- An employee’s own serious health condition
- To care for an employee’s family member with a serious health condition
- The birth or adoption of a child
- A ‘qualifying exigency’ arising from a family member who is in the military
Time Off Provided
Under most circumstances, employees are entitled to a maximum of 12 weeks of leave from work in a 12 month period. If an employee qualifies for a servicemember FMLA leave, he or she may be entitled to up to 26 weeks of leave from work. Leave can be used at one time or ‘intermittently.’ Intermittent leave can be for a week, a day, or even an hour.
If you are unable to return to work after you have exhausted your FMLA leave, your employer may have the right to terminate your employment. However, you may be entitled to an extension of leave time as a reasonable accommodation under other state and federal laws, such as the Americans with Disabilities Act (“ADA”).
Job and Benefits Protection
The FMLA does not require that an employer pay you for FMLA time off from work. However, if you have accrued paid time off (such as vacation or sick time) you should be able to use that time during your FMLA leave if you want. Also, an employer may, under certain circumstances, require you to utilize your accrued time during your leave.
When you take FMLA leave you are entitled to reinstatement of your position or an ‘equivalent’ position upon returning to work after the leave. However, this right is not unconditional. For example, you are not protected from a legitimate layoff. Also, an employer is not required to reinstate you if you are unable to perform the essential functions of your job at the end of your leave period. In this situation, you may be entitled to an extended leave from work, job reinstatement with reasonable accommodations through other state and federal laws. These situations are complicated and very fact specific. You should speak with an attorney before assuming any such protections.
An employer is required to maintain coverage for group health benefits during an FMLA leave. An employer is not required to permit you to continue to accrue seniority and other benefits during your leave. However, the employer must provide you with the same benefits, at the same levels, as existed when your leave commenced.
How to ask for FMLA leave
Know your rights and what you are entitled to so that you can ask for FMLA leave. Your employer may fail to realize your needs or entitlement to FMLA leave. This can lead to adverse job actions and even termination for unfounded reasons.
If you believe you experienced adverse job actions and that you were entitled to FMLA leave and its other benefits, you should know that you are not required to say: ‘I need an FMLA leave.’ You only have to give your employer enough information about the reasons for your need for time off that it knows or reasonably should know that you may have a situation entitling you to FMLA leave. In this circumstance, your employer has an obligation to inform you that you are eligible for FMLA leave. If you believe your employer should have informed you of your eligibility for FMLA leave, you should speak with an attorney about whether you have any recourse.
Employee Obligations under the FMLA
Employees also have obligations under the FMLA. For example, you must provide your employer advanced notice of your need for FMLA leave if it is ‘foreseeable.’ Also, your employer can require you to check-in periodically and to provide medical certification. You should make certain to discuss with your employer what your obligations are prior to, during, and upon returning from your leave so that you are not unnecessarily denied FMLA rights and benefits.