Family Medical Leave Lawyers – FMLA Claims
The Family Medical Leave Act (FMLA) entitles employees of covered employers to take unpaid, job-protected leave for certain family or medical reasons. Under the Act, eligible employees are entitled to 12 workweeks of leave within a one year period for the following reasons:
- The birth of a child and to care for a newborn within one year of the birth,
- The placement of a child for adoption or foster care with the employee within one year of the placement,
- To care for a spouse, child or parent with a serious health condition,
- A serious health condition that makes the employee unable to perform an essential function of his or her job, or
- Any qualifying need arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on covered active duty.
Further, eligible employees are entitled to 26 workweeks of leave within a one year period to care for a covered servicemen, who is the spouse, child or parent of the employee, with a serious injury. This portion of the FMLA is known as military caregiver leave. As of February 23, 2015, the definition of spouse includes employees in legal same-sex marriages. A serious health condition generally refers to a condition requiring an overnight stay at a hospital or medical care facility. In addition, pregnancy may be considered a serious medical condition. Moreover, the 12 workweek leave only requires unpaid leave. An employee may, however, elect to use any accrued paid vacation leave for some or all of the FMLA period.
Who’s Entitled to FMLA Coverage
There are several requirements an employer and employee must comply with in order to be eligible for FMLA coverage. The Act applies to all public agencies at the local, state and federal level, and includes all local education agencies. In addition, the FMLA covers private sector employers with at least 50 employees. For private sector employers, an employee must be employed for at least 20 workweeks in the current or previous year to be considered an employee. Working for a covered employer is the first step of eligibility for an employee. Aside from being employed by a covered employer, an employee must have worked 1,250 hours during the 12 months preceding the requested leave. Any paid or unpaid leave during that time does not count as hours for purposes of FMLA eligibility. If an employee satisfies the hour requirement, he or she is one step closer to being eligible for coverage. The employee must also work at a location where the employer has at least 50 employees within a 75-mile radius. Finally, the employee must have worked for the employer for at least one year, although there is no requirement that the time be consecutive.
An employer is required to post a notice on the premises outlining the FMLA’s provisions and rights under the Act for eligible employees. Some employers distribute employment handbooks or manuals containing the provisions of the Act at the start of employment. Employers must also notify employees of his or her eligibility to take leave, in the event an employer knows the reason for leave may be protected by the Act. In general, an employee must provide 30-days advanced notice of the desire to take FMLA leave. This 30-day window applies when the need for leave is foreseeable and the subsequent notice is practicable. If the need for leave arises out of a sudden circumstance, this required timeframe may not apply. However, without unusual circumstances, employees must comply with the 30-day notice requirement when requesting leave. In the event the reason for leave is because of a serious medical condition, an employer may require certification from a medical professional. If an employer requests certification, the employee must be given 15 days to obtain the medical certification to comply with the employer’s demands. Once certification is provided, an employer must notify the employee within 5 business days whether or not the leave is protected under the FMLA. If the employer has reason to doubt the validity of the certification, he or she can request a second or third medical opinion. Any subsequent medical opinions are at the employer’s expense, however.
At the conclusion of the FMLA leave, an employee has the right to full job restoration. Under the Act, an employer is required to return the employee to the same job he or she had before the leave. If the same job is not available, the employee must be placed in a job that is equivalent or identical. An equivalent job is one that offers the same work schedule, same pay and benefits, and substantially similar job responsibilities or duties.
An employer is prohibited from interfering with or denying the exercise of any right proscribed by the FMLA. Because of this, an employer cannot punish an employee returning from leave by placing him or her in a less desirable position. The Department of Labor, Wage and Hour Division is responsible for the enforcement of the FMLA on employers. An employee who believes his or her rights under the FMLA have been violated may file a claim with the Wage and Hour Division or through a private lawsuit.