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E-Newsletter: Employment Law

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The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is a federal law providing qualified employees with unpaid time off from work to attend to certain family needs, including:

  • Birth or care of a child
  • Placing a child for adoption or in foster care
  • Caring for a newly placed child
  • Caring for a serious health condition of the employee or the employee’s immediate family (spouse, child or parent)

The FMLA applies to local, state and federal governments, schools, public agencies and private employers who have at least 50 employees for at least 20 workweeks currently or in the previous calendar year.

In order for an employee to qualify for FMLA leave, the employee must:

  • Work for a covered employer
  • Have worked for the covered employer for at least 12 months prior to the requested leave
  • Have worked at least 1250 hours for the covered employer within the 12 month period prior to the requested leave
  • Work at a location where at least 50 employees are employed or within 75 miles of that location

Employees who meet these qualifications are entitled to up to 12 workweeks of unpaid FMLA time within a 12 month period. There are some restrictions on how this time may be used, however. Spouses who work for the same employer are entitled to a total of 12 workweeks FMLA time if the purpose for the leave is for the birth or care of a child; adoption or foster care; or care of a parent with a serious health condition.

Notice Requirement

If the leave is foreseeable, like if the employee has a scheduled surgery in two months, the employee may be required to provide up to 30 days notice to the employer before taking FMLA time.

However, if the leave is not foreseeable, the employee is expected to give notice as soon as practicable, which usually means notifying the employer verbally within 1-2 days of discovering the need to take FMLA time. The employee also can notify the employer of the desire to use time already taken off as FMLA time, so long as the employee provides notice within two business days of returning to work from the leave.

Medical Certification

In some instances, the employer may require the employee to provide documentation to show that the purpose of the requested leave is for a FMLA approved-purpose. This can include certification from a health care provider in instances when the employee is taking time off for his or her own medical care or for that of an immediate family member. However, the employee is not required to provide the employer with his or her medical records.

Job Restoration

An employee who takes FMLA leave is entitled to receive his or her job back or an equivalent position once the employee returns from leave. An equivalent position means one that offers the same salary, benefits and employment terms and conditions.

An exception to the job restoration rule exists for those who meet the definition of “key employees.” Employers have the right to refuse to restore the positions of highly paid, salaried key employees if it would cause “substantial and grievous economic injury” to the employer’s business operations to do so.

Health Benefits

While the employee is taking FMLA leave, the employer is required to continue providing health benefits to the employee. In turn, the employee is required to continue to pay his or her portion of the premium. Failure to do so can result in a loss of benefits. Employers also have the right to discontinue health benefits for employees who notify them they will not be returning at the end of their FMLA leave or who fail to return to work at the end of the leave period.

FMLA Employee Rights

Employees may not be discriminated or retaliated against by their employers for requesting or taking FMLA leave. Employers cannot use the time off to count against the employee in hiring, promotion, performance review or other employment decisions. Employees who feel their rights under the FMLA have not been upheld by their employer or who have suffered adverse employment decisions or have been discriminated against for taking FMLA time can file a complaint with the Wage and Hour Division of the US Department of Labor. Employees also may file a civil suit against their employer.

For more information on your legal rights under the FMLA, contact an experienced employment lawyer in your area today.

Meeting with Your Employment Law Attorney

To read and print out a copy of the checklist, please follow the link below.

Meeting with Your Employment Law Attorney

You can download a free copy of Adobe Acrobat Reader here

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