Other Disability Issues Article

The Family Medical Leave Act

Overview of FMLA
The Family & Medical Leave Act (FMLA) allows employees to take job-protected unpaid leave when they have a serious health condition or to care for certain family members when the family member has a serious health condition.  (29 U.S.C.2601 et seq.) The FMLA tells employees and employers what health conditions are “serious health conditions”   Employers cannot interfere with, discipline, or retaliate against an employee who has used FMLA. 
A “serious health condition” does not cover minor health issues. Employers can discipline or fire employees who miss work because of illnesses that are not covered by the FMLA.

Not all employees have FMLA protection.  To have FMLA protection, an employee must:
•    Work for a company that has 50 or more employees within 75 miles of your workplace; and,
•    Have worked for the  employer for at least one year before taking the FMLA leave (previous employment with the employer in the past seven years counts); and
•    You worked at least 1,250 hours (about 25 hours per week) in the past twelve months.
 
Time Off
The FMLA allows an employee to take up to 12 weeks of unpaid leave in an FMLA year.  The FMLA year may be the same as the calendar year, but does not have to be.  The employer determines the FMLA year.  If you have questions about your employer’s FMLA year you should review your employer’s FMLA policy or ask your supervisor or an HR department representative.

This 12 weeks of leave per FMLA year is for all serious health conditions combined, not for each serious health condition.  This means that if an employee takes 12 weeks of FMLA to have and recover from surgery, the employee is not eligible for any more FMLA protected leave in the FMLA year even if the employee has a different serious health condition.

FMLA does not require an employee to take the entire working day off.  Missing work at the beginning or during the shift or leaving work early can be protected time off as long as the employee gives the employer the right FMLA paperwork.
 
FMLA allows for “intermittent” leave.  Intermittent leave (or reduced leave) means an employee can take time off only when the health conditions flares up or only to attend doctor’s appointment and medical treatments.  An employer cannot force an employee to take more FMLA time off than is necessary.  This is important because FMLA time off is unpaid time off.

Employees on intermittent leave are required to notify their employer of their absence when they take intermittent FMLA leave.

An employee that is eligible for FMLA can take time off:
•    To recover from their own serious health condition that prevents the employee from performing the essential functions of the job;
•    To care for a child, spouse, or parent with a serious health condition;
•    For the birth and bonding time of the employee’s child within one year of the birth;
•    Placement with the employee of a child for adoption or foster care, within one year of the placement;
•    Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the U.S. National Guard or Reserves in support of a contingency operation. Qualifying exigency is defined in the FMLA and includes such things as arranging different child care arrangements or taking time off to be with an active service member on rest and recuperation;
•    To care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member. This FMLA leave is called Military Caregiver Leave.  This FMLA leave can be for up to twenty-six workweeks of leave during a single 12-month period.
 
FMLA Time Off is Unpaid
FMLA time off is unpaid. However, if the employer offers some paid time off, such as vacation pay, employers can require employees on FMLA to use this paid time off while on FMLA.
And, if the employer does not require the employee to use this paid time off, the employee can request this paid time off pay and the employer cannot refuse the employee request.  (29 U.S.C 1612 (d)(2)(A).

Applying for FMLA
Employees must notify their employer of their need to take time off and have certain paperwork filled out by their treating physician.  The employee must inform their employer as soon as they are aware of their need to take FMLA.  If the employee knows leave is needed more than 30 days ahead of time, the employee must provide at least thirty days notice.

The employer should provide the employee needing the leave with paperwork.  The employee is responsible for having their treating physician complete the paperwork and returning the paperwork to the employer.  The completed paperwork will help the employee and the employer determine if the health condition is a “serious health condition: covered by the FMLA.  The paperwork will also show how much time off the employee needs and the anticipated return to work date.

Occasionally, doctors charge a fee for completion of the paperwork.  The FMLA says the employee is responsible for paying this fee.

Employee Benefits While on FMLA
The employer must provide the employee on FMLA with group health insurance benefits if the employee had group insurance when the employee went on FMLA.  But, the employee must pay their part of the health care premiums while on FMLA.  If the employee does not pay their part of the health care premiums, the employer can drop the employee from health care coverage while on FMLA

Returning to Work
Employees should notify their employer 48 hours in advance when they can return to work.
Upon return to work, the employee is entitled to the same job, or a virtually equivalent job, with the same pay, benefits, duties, hours, and location.
What to do if Your Rights Have Been Violated

Employers cannot interfere with, discipline, or retaliate against an employee who has used FMLA.  Interfere means preventing employees from taking FMLA.  Discipline can be writing up an employee for missing work while on FMLA. Retaliate can mean firing, demoting, or failing to promote an employee because they took FMLA.  Retaliation can also be the employer not returning the employee to the same or virtually equivalent job when the employee returns from FMLA.

If you believe your employer is not treating you right because you have used your FMLA rights,   review your employer’s FMLA policy to determine who you should speak to and arrange a meeting with that person.  Have a meeting with that person and explain why you feel you are not being treated right.  Give the employer as many specific facts as you have. Listen to the employer’s explanation.
 
If, after speaking with your employer, you still think your employer is interfering with your right to take FMLA, has disciplined you because you took FMLA, or has retaliated against you for taking FMLA, you should contact the Wage and Hour division of the U.S. Department of Labor.  This is the contact information for the Arizona office.

Phoenix District Office
US Dept. of Labor
Wage & Hour Division
230 N. First Avenue, Suite 402
Phoenix, AZ 85003-1725
Phone:
(602) 514-7100
1-866-4-USWAGE
(1-866-487-9243)

You must file an FMLA complaint within two years from the incident that violated your FMLA rights. 

Individuals may also file a private lawsuit in Federal or state court within two years from the incident that violated your FMLA rights.  Individuals filing a private lawsuit should consult with and be represented by an attorney.

For More Information
Here is a link to a Department of Labor Fact Sheet about the FMLA - https://www.dol.gov/whd/regs/compliance/whdfs28.pdf
Here is a link to an Employee Guide to the FMLA - https://www.dol.gov/whd/fmla/employeeguide.pdf

Here is a link to the Electronic Code of Federal Regulations-
http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=d178a2522c85f1f401ed3f3740984fed&rgn=div5&view=text&node=29:3.1.1.3.54&idno=29#se29.3.825_1305

On 3/17/08
Elissa said
Since FMLA is unpaid leave is there any type of government assistance to help financially during the leave time I.E. unemployment, social security...