Sometimes we are faced with certain life events that can make working nearly impossible. As a result, certain employers are required to give their employees a certain amount of leave to deal with the birth of a child, medical conditions, pregnancy, or injury.
What is the Family Medical Leave Act [FMLA]
The FMLA is a federal law that protects employees who work for private employers with 50 or more employees. The law provides legal protection for time off from work for:
- any serious health condition of your own, or of an immediate family member, which includes a spouse, child or parent with a serious health condition;
- to care for newborn baby; or
- the adoption of a child, pregnancy and related health conditions.
The FMLA provides up to 12 weeks of leave, in a 12 month period, which can be paid or unpaid. An employer may pay the employee for accrued vacation and sick time, with the balance of the time unpaid. The 12 weeks of leave may be taken intermittently or on a continuous basis. That means that an employee may take leave in separate blocks of time, or reducing the time worked each day or week for a single qualifying reason.
Sick leave may be considered FMLA leave
A company may characterize your sick leave as FMLA, depending on the circumstances. You need to verify and check with the human resource department to determine how the company is keeping track of your time off related any serious illness for yourself or a family member.
How do you qualify for FMLA
The Family Medical Leave Act (FMLA) permits eligible employees to take up to 12 weeks of unpaid leave from work in any 12-month period to care for themselves and/or family members. It applies to private employers with at least 50 employees. To qualify for the FMLA, employees must have:
- worked for their employer for 12 months;
- worked at least 1,250 hours over the past 12 month period;
- work at a location where the company employs at least 50 or more employees.
If the leave is foreseeable, like a planned surgery, then the employee should give notice to the employer in advance of the planned event. Employees should give as much notice as possible, preferably 30 days’ notice when the leave is foreseeable. If the leave is urgent, or not foreseeable, then the employee should give as much notice as is practical under the circumstances.
Employer’s covered by the FMLA should:
- post a notice explaining rights and responsibilities under the FMLA;
- include information in the employee handbook or provide information to employees upon hire regarding the FMLA;
- once the employee gives notice to the employer of an FMLA qualifying event, the employer should:
- provide the employee with notice regarding their rights under the FMLA;
- notify the employee whether the leave is designated as FMLA leave and the amount of leave that will be deducted from the employee’s FMLA leave entitlement;
Employees should:
- keep their employer informed about the medical condition and provide certification from the physician, if requested from the employer;
- provide periodic re-certification if requested by the empoyer;
- keep in contact with their treating medical provider and ensure all appropriate documentation requested from the employer is provided to the medical provider;
- ensure the medical provider completes and provides the employer requested documentation in a timely fashion.
Many issues arise in FMLA matters involving the timely completion and transmission of documentation requested from the employer and completed by the medical provider. If the employer requests documentation regarding FMLA and the medical provider does not timely complete the documentation, the employee should coordinate such information to avoid any consequences, such as termination.
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Protections if you take FMLA
The FMLA gives employees the right to be restored to the same or an equivalent position when he or she returns; equivalent pay and health benefits during leave, and the right not to be retaliated against for taking leave.
For example, if an employee takes leave counted as FMLA, an employer may not use the time off against the employee for disciplinary purposes. Thus, if an employee is written up or otherwise disciplined because the employee did not meet certain production standards, or violated attendance while out on FMLA, this would be considered retaliation against the employee and a violation of the FMLA.
Another example: if the employee was out on FMLA and returns to work and is demoted, has their pay reduced or terminated from employment, then the company retaliated and discriminated against he employee and has violated the FMLA.
Remedies under the FMLA
If an employer violates the FMLA, an employee may be able to recover the following types of damages:
- back pay and benefits from the date of termination;
- reinstatement to your company;
- if reinstatement is not possible, front pay and benefits into the future;
- liquidated damages; and
- attorney’s fees
Punitive damages and emotional distress damages are not recoverable in an FMLA case.
Employees should never be forced to choose between job security and taking time off from work to care for themselves, their newborn child, or a sick family member.
If you believe that your employer has violated the FMLA, do not hesitate to contact my office for a free, confidential case evaluation by a Board-Certified Labor and Employment attorney dedicated to representing employees and executives. Feel free to visit our website or call our office directly at 210-690-2200.