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THE FAMILY AND MEDICAL LEAVE ACT (FMLA)
Medical emergencies 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 when these events occur.
Determining whether the FMLA applies to your employer and whether your particular situation is a “qualifying” circumstance entitling you to rights and benefits can be complicated and very fact specific. Pontikes & Swartz 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.
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 National Guard or Reserves being notified of an impending federal call or order to active duty
Not all illnesses, medical conditions, and service exigencies are FMLA qualifying circumstances. An attorney at Pontikes & Swartz can assist you in determining whether your circumstance qualifies.
Time Off Provided
Under most circumstances, employees are entitled 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 through other laws, such as the Americans with Disabilities Act (“ADA”) and Massachusetts’ Anti-Discrimination Statute, M.G.L. c. 151B. These situations are complicated and very fact specific. You should discuss your situation with an attorney before you take any steps to rely on such extended protections.
Job and Benefits Protection
The FMLA does not require that an employer pay the employee for FMLA time off from work. However, if an employee has accrued paid time off (such as vacation or sick time) he or she should be able to utilize that during FMLA leave. Also, an employer is entitled to require the employee to utilize his or her accrued time during the FMLA leave.
An employee who takes FMLA leave is entitled to reinstatement of his or her former position or an “equivalent” position upon returning to work after the leave. However, the right to job reinstatement is not unconditional. For example, an employee is not protected from a legitimate layoff. Also, an employer is not required to reinstate an employee who is unable to perform the essential functions of his or her job. In this situation, you may still be entitled to a job reinstatement with reasonable accommodations through other laws, such as the ADA and M.G.L. c. 151B. Again, these situations are complicated and very fact specific. You should speak with an attorney before relying on any such protections.
An employer is required to maintain coverage for group health benefits during an employee’s FMLA leave. An employer is not required to permit an employee to continue to accrue seniority and other benefits during his or her leave. However, the employer must provide you with the same benefits, at the same levels, as existed when an employee’s 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. Employers can fail to realize an employee needs or is entitled 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, you should know that an employee is not required to say: “I need an FMLA leave.” The employee only has to give the employer enough information about the reasons for his or her need for time off that the employer knows or reasonably should know that the employee may have a situation where he or she requires and is entitled to FMLA leave. In this circumstance, the employer has an obligation to inform the employee that he or she is 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 have certain obligations under the FMLA. For example, employees must provide an employer advanced notice of the need for FMLA leave if “foreseeable.” Also, an employer can require the employee to check-in periodically and to provide medical certification. You should make certain to discuss with your employer what your obligations are to apply for and during your leave so that you are not unnecessarily denied FMLA entitlements.
What recourse do you have if your FMLA rights are violated?
An employee can file a lawsuit in court for an FMLA violation. FMLA violations include interference with or denial of an employee’s right to take an FMLA leave and retaliation against an employee for taking FMLA leave or complaining about a denial of rights. Employees can also file a claim with the U.S. Department of Labor.
To review the FMLA in its entirety and for additional information, click here: www.dol.gov/esa/whd/fmla. This is the official website sponsored by the U.S. Department of Labor.
This article provides only a brief overview. There are many complicated and fact specific considerations that must be evaluated to determine how the FMLA may apply to your situation. If you are concerned that your FMLA rights are being violated or you need assistance in determining whether you are eligible for FMLA entitlements, an attorney at P&S is available for a private consultation.