The Family and Medical Leave Act (FMLA) was created to help employees balance the demands of the workplace with the needs of their families. The Act requires covered employers to provide reasonable unpaid leave to employees for certain family and medical reasons. Employees are entitled to a total of 12 work weeks of unpaid job-protected leave during a 12 month period. Read below to learn more about the leave employees are entitled to under the FMLA.
Under federal law, certain employees have the right to take up to 12 weeks of unpaid leave per year (any 12-month period) for the following reasons:
Under the FMLA, eligible employees may take family leave to care for a qualifying family member; medical leave to seek care for, or recover from, your own serious health condition without the fear of being fired. During your FMLA leave, your position with your employer is protected. Upon your return to work, your employer must either give you the same job you had before your leave. Alternatively, your employer can place you in a position with essentially the terms and conditions of employment. This includes:
Additionally, employer must continue to pay for your health insurance coverage during your leave as it normally would have during your employment.
Once you or your employer have determined that you’re entitled to take medical , you have the right to take that leave free from harassment or discrimination. Your employer cannot interfere with your right to take leave, discriminate against you for requesting information about your rights, or discriminate against you for taking a family or medical leave.
In addition to the Family and Medical Leave Act (FMLA), there are also other federal laws that protects you from discrimination, harassment, interference, or retaliation when requesting family or medical leave. These statutes include:
Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act of 1978, (see section 2000e(k) for the specific language concerning pregnancy) and the Americans with Disabilities Act (ADA). Title VII makes it illegal to discriminate on the basis of sex, which includes pregnancy discrimination and has been interpreted to protect discrimination against people based on their sexual orientation.
The ADA makes it illegal to discriminate on the basis of disability, and may protect employees who wish to take leave for disability-related reasons.
In order to determine if the FMLA applies in your situation, it’s important to first speak with an FMLA attorney. However, in order for you to be covered by the FMLA’s medical leave and family leave protections, both you and your employer must meet certain qualifications.
Your employer must have 50 or more employees on the payroll for 20 work weeks during the current or preceding calendar year. Employees who work for your employer within a 75-mile radius of your worksite count toward the 50-employee total.
To determine whether your employer is covered, find out how many employees are on the payroll, including those on leave and working part-time.
If your location does not have 50 employees, find out whether your company has other employees at locations within a 75-mile radius.
A serious health condition within the meaning of the Family and Medical Leave Act is an illness, injury, impairment or physical or mental condition that involves: In general, if you or your family member are:
then you or your family member are likely considered to have a condition that “involves continuing treatment by a health care provider,” and are thus protected under the FMLA even if no hospitalization is involved.
However, a regimen of continuing treatment that includes the taking of over-the-counter medications or bed-rest or other similar activities that can be initiated without a visit to a health care provider is not, by itself, sufficient to constitute a regimen of continuing treatment for the purposes of FMLA leave.
Common examples of conditions generally considered “serious” are: heart conditions, strokes, back conditions, injuries caused by accidents, pregnancy and related conditions such as miscarriages and morning sickness, cancer, asthma, pneumonia, diabetes, epilepsy, serious infections, Alzheimer’s, and arthritis. It’s also important to note that this list is not exhaustive, and in addition to these health conditions, there could be many other health conditions not on this list that could also be considered serious health conditions.
You may take leave to care for the following family members when they have a serious health condition:
your child, or
The FMLA definition of parent includes anyone who is a biological or adoptive parent, or who acted as your parent when you were a child. The definition does not include in-laws. Your spouse may be eligible to take leave to take care of his or her own parents, but you cannot take FMLA leave even if your spouse is not eligible for FMLA leave or is the family’s highest wage-earner. The FMLA definition of child includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in a parental capacity, who is either under age 18 or an adult child who is incapable of caring for himself or herself. The FMLA definition of spouse includes a husband or wife as defined or recognized under state law for purposes of marriage in the State the marriage was entered into. , including common law marriage in states where it is recognized, and same sex marriages The federal law does not include in the definition of spouse an unmarried partner, domestic partner, or common law spouse in states where common law marriages are not recognized.
Pregnancy leave or maternity leave is used to describe two types of leave covered by the FMLA:
Medical Leave or Disability Leave: The time a woman is unable to perform work because of pregnancy, childbirth and their aftermath, and
Family Leave: Child care or child-rearing leave, which consists of the time after birth or adoption. Note: A parent of either sex can care for the child. during which a parent (of either sex) cares for the child.
Under the FMLA, male employees can also take FMLA leave, either for child-care, child-rearing reasons after the new addition to your family arrives, or for the other reasons allowable under the law.
The Family Medical Leave Act (FMLA) provides that each parent can take a leave at the same time, overlapping times, or consecutively, as long as each parent’s leave occurs within one year of the child’s birth or placement for adoption. Furthermore, the parents do not have to be married to each other to be eligible for leaves. However, an exception could arise to this both parents work at the same workplace.
Under the FMLA, the law requires that you provide the following information to your employer:
Furthermore, the law also requires that:
You do not need to mention FMLA when requesting leave, but must only explain why the leave is needed. Simply put, you must merely provide sufficient information for your employer to understand that you need FMLA leave for qualifying reasons.
For instance, if your employer was not made aware that an employee was absent for FMLA reasons and the employee wants the time missed from work counted as FMLA leave, then the employee should give timely notice that leave was taken for a qualifying reason within the meaning of the FMLA.
Employers can require written notice of the need for leave consistent with their customary procedure requirements. You may also be asked during FMLA leave to provide periodic reports regarding your status and intent to return to work.
Despite what many employers would have you believe, the Florida workplace is not Harry Potter land, you do not have to state some magic words in order to give notice to your job that you need FMLA leave. In reality, if your company is a qualified employer, then they should know when the FMLA applies. While you don’t initially have to give detailed, personal information, it might be a good idea to tell your employer that you want leave under the FMLA, so that it can’t say that it didn’t know you wanted FMLA leave pursuant to the Family Medical Leave Act (FMLA).
Sometimes, you might not be able to give advance notice or take leave according to the schedule you had originally planned. In these situations, you cannot be denied leave on the basis of inadequate notice as long as you give notice
as soon as practicable.
As such, you should give notice within one or two business days of learning about your need for leave, especially if you’re not able to return to work immediately or didn’t have advance notice that you needed FMLA leave.
Pursuant to the FMLA, a covered employer must:
In addition, your employer’s notice should include the following:
There is more information on “key employees” below.
Unfortunately, the FMLA only requires that you are allowed to take unpaid leave without fear of punishment or losing your job. However, your job does not have to pay you during your leave.
The caveat to this rule is that you may be eligible for Paid Time Off (PTO) e during all or part of the same time period you are eligible for FMLA leave by using compensated sick leave, vacation leave, annual leave or short-term disability leave, but that is not required under the FMLA. This lack of paid leave prevents many employees from exercising their rights to FMLA leave, as you may be financially unable to take unpaid leave. However, federal law has not been changed to provide for compensation.
16. I have accumulated sick and vacation leave. Does that affect how much FMLA leave I can have?
You may generally choose to use, or your employer may require you to use, accrued paid leave to cover some or all of the FMLA leave taken.
You may also choose, or your employer may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer’s policies governing the use of such leave, but is not forbidden under the FMLA. If you do elect to use paid leave in place of unpaid leave, your employer can require you to follow the requirements under the paid leave policies but still have the time count toward your FMLA allotment.
17. I started my current job six months ago. Am I entitled to take FMLA leave?
No. Even if you have accumulated over 1250 hours of work in a time period that is less than one year, you must also have worked for one year (12 months) to be eligible. You may be eligible for other types of leave or benefits under your employer’s policies, a union contract or state law, but you are not eligible for FMLA leave. The 12 months do not have to be continuous or consecutive, however. All time worked for the employer is counted toward the 12 months.
Therefore, if you are not eligible to take FMLA leave when the need first arises, but later you become eligible, you may take leave once you’re eligible. For example, if you are diagnosed with cancer after working for an employer for nine months, and use accumulated sick time to cover your initial treatment, you could take FMLA leave after three more months of employment to accommodate chemotherapy appointments or other continued treatment.
You can take up to a total of 12 weeks in a 12-month period. Your employer may select one of four options for determining the 12-month period:
Note: If you are family member of a military service member, you can take up to a total of 26 weeks in a 12-month period.
Upon return from FMLA leave, you must be restored to either:
In addition, your use of FMLA leave cannot result in the loss of any employment benefit that you earned or were entitled to before using FMLA leave, nor can it be counted against you under a “no fault” attendance policy. However, if you are a “key employee” under FMLA, your employer may not have to keep your job or a similar position open for you.
20. What happens to my benefits while I am on FMLA leave?
A covered employer is required to maintain your group health insurance coverage while you are on FMLA leave, whenever such insurance was provided before the leave was taken and on the same terms as if you had continued to work. If you paid for all or part of your health insurance premiums before you were on leave, you will need to make arrangements to continue payment during your leave. If your employer paid all or part of your premiums, it will need to continue payment according to the same terms. If your family members are usually covered by your health insurance policy, your employer must continue their coverage during your leave as well.
In some instances, your employer may recover premiums it paid to maintain health coverage for you if you fail to return to work from FMLA leave. However, if the reason you do not return to work is your own or your family member’s serious health condition or other circumstances beyond your control (such as a spouse’s job transfer), your employer cannot collect from you the health insurance premiums it paid on your behalf.
Other benefits, including cash payments you have chosen to receive instead of group health insurance coverage, need not be maintained during periods of unpaid FMLA leave.
For non-union employees, certain types of earned benefits, such as seniority or paid leave, need not continue to accrue during periods of unpaid FMLA leave provided that such benefits do not accrue for employees on other types of unpaid leave, such as disability leave or sabbaticals. For example, you cannot lose what seniority you have already accumulated, but your failure to accrue further seniority during your leave may cause you to lose ground to other employees who have not taken leave. Union employees often continue to accrue seniority and other paid benefits during periods of unpaid FMLA leave, even if the collective bargaining agreement doesn’t explicitly provide for the continuation of benefits. Consult your union for additional information if you are unsure about the status of your benefits.
For other benefits, such as elected life insurance coverage, you and your employer may make arrangements to continue benefits during periods of unpaid FMLA leave. Your employer may choose to continue such benefits to ensure that you will be eligible to be restored to the same benefits upon returning to work. At the conclusion of the leave, your employer may recover only your share of premiums it paid to maintain non-health benefits during unpaid FMLA leave.
In addition to denying reinstatement in certain circumstances to “key” employees (more information below), employers are not required to continue FMLA benefits or reinstate you if you would have been laid off or otherwise had your employment terminated had you continued to work during the FMLA leave period. This could happen, for example, if there was a general layoff.
Employees who give clear notice that they do not intend to return to work when they leave lose their entitlement to FMLA leave. Therefore, do not give notice before your decision to leave the company is final because if you change your mind, you may no longer be eligible for reinstatement. If the reason you do not return to work is because of your own or your family member’s serious health condition or other circumstances beyond your control (such as a spouse’s job transfer), your employer cannot collect from you the health insurance premiums it paid on your behalf during the leave.
If you are unable to return to work and have exhausted your 12 weeks of FMLA leave in the designated 12 month period, you no longer have FMLA leave protections or the right to return to your job. However, your employer may voluntarily extend your leave or guarantee you can return to your job even though it is not required under the FMLA.
Under certain circumstances, if you are experiencing a serious health condition and your employer advises you that it will require a medical certificate of fitness for duty before you can return to work, you can be denied reinstatement if you fail to provide the certification, or your reinstatement may be delayed until you submit the requested certification.
The FMLA permits you to take leave on an intermittent basis or to work a reduced schedule under certain circumstances.
Intermittent or reduced schedule leave may be taken when medically necessaryto care for a seriously ill family member or because of your own serious health condition. Intermittent or reduced schedule leave may also be taken to care for a newborn or newly placed adopted or foster care child only with the employer’s approval.
Only the amount of leave you actually take while on intermittent or reduced schedule leave may be charged as FMLA leave. Your employer may not require you to take more FMLA leave than necessary to address the circumstances that cause the need for leave. Employers may account for FMLA leave in the shortest period of time recorded by their payroll systems, provided it is one hour or less.
If you or your family member needs intermittent or reduced schedule leave for foreseeable medical treatment, you must work with your employer to schedule the leave so as not to unduly disrupt your employer’s operations, subject to your health care provider’s approval. In such cases, your employer may temporarily transfer you to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave more easily than your regular job.
It depends. If you are among the highest-paid ten percent of employees in your organization, which the FMLA defines as a “key employee,” your employer may not have to keep your job or a similar position open for you. But before your employer can deny you leave, it must show that guaranteeing you your job would cause substantial economic harm to the organization. You must also be told in advance that you qualify as a key employee and that as a result, your job may not be open when you return. Whatever happens on your return, your employer must maintain your usual health insurance coverage while you are on leave.
A “key employee” is defined as a salaried, “eligible” employee who is among the highest paid ten percent of employees within 75 miles of the worksite.
In order to comply with the FMLA’s “key employee” exception, the employer must:
notify you of your status as a “key employee” in response to your notice of intent to take FMLA leave;
notify you as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;
offer you a reasonable opportunity to return to work from FMLA leave after giving this notice; and
make a final determination as to whether reinstatement will be denied at the end of the leave period if you then request that you be reinstated to your job.
The FMLA covers all local, state and federal government agencies, regardless of the number of employees. But like employees of private companies, government employees have to work at a worksite that has 50 or more employees within 75 miles, and to have worked for the employer a minimum of 1250 hours over the last year.
Federal courts currently are split on whether or not you can recover monetary damages under the FMLA if you are a state employee, but a state employee may be protected under state law. If you are a state employee who has been denied FMLA leave, you may need to discuss your individual situation with an attorney to figure out how best to proceed.
Under the FMLA, an employer is permitted to require that your need for FMLA leave, based on a serious health condition that you or your family member suffer from, is supported by a certification issued by a health care provider.
The Family Medical Leave Act requires that your employer must allow you at least 15 calendar days to obtain the medical certification. Furthermore, the certification must include:
Additionally, your employer may require you to obtain a second medical certification from a health care provider. This second certification but be done at your employer’s expense. While, your employer may choose the health care provider for the second opinion, except that in most cases it cannot be someone with whom your employer regularly contracts or uses their services.
Finally, if the opinions of the two designated health care providers differ, your employer may require you to obtain certification from a third health care provider, again at the employer’s expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by you and your employer. In addition, your authorization is required for the release of medical information to second/third opinion health care providers.
If it is requested by your employer and you don’t provide the medical certification, your absence is not protected by the FMLA. This means that your employer has the legal right to fire you for that absence (unless some other law, or your collective bargaining agreement, applies).
Yes, under some circumstances. Your employer may ask you questions to confirm whether your leave still qualifies for FMLA purposes, and may require periodic reports on your status and intent to return to work after leave.
Also, if your employer wishes to obtain another opinion, you may be required to obtain additional medical certification at the employer’s expense, or re-certification while you are still on leave. The employer may have its health care provider contact your health care provider, without your advanced approval, to clarify information in the medical certification or to confirm that it was provided by your health care provider. The inquiry may not seek additional information regarding your health condition or that of a family member.
Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligation to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment.
If you qualify for a family or medical leave under the FMLA, you have the right to take that leave free from interference, harassment, discrimination, or retaliation. Your employer cannot interfere with your right to take FMLA leave or discriminate against you for requesting information about your rights or for taking a leave. Therefore, if you are in full compliance with your certification requirements, and the purpose of a call from your employer is to harass or discourage you from taking further leave, contact FMLA Attorney Patrick Elliott by clicking here, or by calling your employer may be violating the law.
If you have been denied leave or are not allowed to return to your job at the end of your approved leave, you may want to file a grievance with your employer. Many companies have policies for handling a employee disputes regarding leave and you may be able to resolve the dispute internally.
However, even if you file a grievance with your employer, the deadlines to file in court or with an administrative agency still apply, so be sure not to miss them. Generally, you have two years from the date your employer violated your FMLA rights to file a a lawsuit or administrative complaint.
If you believe your rights under the FMLA have been violated, you can file a lawsuit or submit a complaint with a federal administrative agency. The Department of Labor (DOL) handles FMLA complaints. . However, unlike most labor laws, you are not required to file an administrative agency before filing a lawsuit in court for violations of the FMLA. If your case is successfully resolved by an administrative agency, however, it may not be necessary to hire an attorney or file a lawsuit (as you will probably be required to waive your legal claims). Therefore, you may wish to first file with the DOL, and then if you are unable to resolve your complaint through the DOL, you can determine at that time (as long as two years have not passed) whether to file a complaint in court.
Why Should I File a Lawsuit for My Job’s FMLA Violation?
Generally, a complaint must be filed either with DOL or in court within two years of the date of the last time that your employer violated your FMLA rights.
Additionally, if it’s demonstrated that the employer’s FMLAviolation was willful or intentional,
However, if it can be shown that the action taken by the employer was willful (intentional), the complaint may be filed within three years of that date. For the best chance of success in resolving the complaint, the complaint should be filed as soon after the date of the last action thought to be a violation of the FMLA as is possible. Union employees who believe that the denial of leave violates their union contract should file a grievance regarding the matter according to the timeframe outlined in their collective bargaining agreement.
An administrative complaint may be filed by contacting the nearest office of the Wage and Hour Division of the DOL’s Employment Standards Administration. The address and telephone number for local offices may usually be found in the telephone directory listings for government offices under U.S. Government – Labor. The complaint may be filed by you or any other person on your behalf. The complaint may be filed in person, by letter or by telephone. The complaint must be in writing.
The DOL will review the merits of the complaint, and where appropriate, will undertake to resolve the complaint administratively through negotiations with the employer. When the complaint is resolved administratively, actions are limited to a two-year period, and interest and liquidated damages are not recovered. In some cases, the DOL may file a lawsuit on your behalf in the event negotiations with your employer are unsuccessful and the DOL is convinced that a violation of the FMLA did occur. If the DOL files a lawsuit, you may no longer bring your own lawsuit in court.
If an employer is found to have violated FMLA, you may be entitled to:
33. More information about the FMLA:
U.S. Department of Labor
National Partnership for Women & Families
Equal Rights Advocates