The Family & Medical Leave Act – your job protection

KVO.about1a1The Family & Medical Leave Act of 1993 (FMLA) has been a way for American workers to spend more time recovering from a serious medical condition, caring for a newborn or taking care of a sick family member. By law, employers cannot retaliate against you for needing FMLA leave and cannot interfere with your right to return to work after FMLA leave. With that said, you should know a little bit about how the FMLA works.

What does the FMLA do? 

The FMLA provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave. That 12 weeks can be in one consecutive stretch, or can occur in segments – even down to say, an hour for a doctor’s visit – to accommodate the specific reason for the leave.

When does the FMLA cover and protect an employee? 

The FMLA applies to all public agencies, all public and private elementary and secondary schools, and many companies with 50 or more employees. With private companies, 50 employees must be within a 75-mile radius (by driving distance, not as the crow flies) of the worksite of the person that needs to take FMLA leave for there to be FMLA protection. Keep in mind that even if the employer doesn’t meet the employer number threshold above, they can still be held liable for FMLA coverage if they represent to an employee that he or she is covered by the “FMLA.” Talk to us if this sounds like your situation.

Employees are eligible for leave if they have worked for their employer at least 12 months and for at least 1,250 hours over the past 12 months (an average of about 24 hours per week). This is a definite technical requirement, and if you’re close to the line on either the 12 months or 1,250 hours, talk to a lawyer to get a professional opinion on whether you may have rights to enforce.

When can an employee get a right to take FMLA-protected leave? 

These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

– for the birth and care of the newborn child of an employee;

– for placement with the employee of a child for adoption or foster care;

– to care for an immediate family member (spouse, child, or parent) with a serious health condition;

– or to take medical leave when the employee is unable to work because of a serious health condition.

What qualifies as a “serious health condition” is defined by law. For example, having the flu would not normally be a “serious health condition.” However if you have a serious case of the flu that requires hospitalization and ongoing treatment, it may qualify for FMLA leave.

Does my work have to pay me while I’m on leave? 

No, and a lot of Texans have a misunderstanding on this. The FMLA essentially provides nothing more than job protection – your right to return to your same job position or an equivalent position if you can return to work before you run out of the 12 weeks of FMLA job protection. It does not require the employer to pay you while you are on leave. It is not additional “sick leave.” It is simply a basic requirement of the employer to keep your job open. The employer may pay you while you’re on FMLA leave due to use of vacation leave, or some other reason that is particular to that employer’s procedures. But the FMLA doesn’t require you to be paid. It just allows you to take the leave from your job without fear that you will lose your job over it. Or – at least – if the employer does wrongfully fire you or demote you because of it, you can hold the employer accountable.

Do I have to request “FMLA leave”? 

No you don’t, not with those words. You only need to make the employer become aware of the need for leave, or the employer only needs to become aware of it. For instance, if the employer finds out from one of your co-workers that you were in a serious car accident and are going to be in the hospital for a couple of days – then this can be enough notice to give you rights under the FMLA as long as you otherwise qualify. If you say, “I’m having surgery to remove my gall bladder on April 26 and the doctor says I will need to be off work for a week” – this can be enough to invoke your FMLA rights. There are certain other requirements that you need to comply with – such as the right of the employer to require medical certification from your doctor. But the point is that you don’t have to say “FMLA leave” to have a right to FMLA leave. You may have FMLA rights even if no one – you, your supervisor, HR – ever mentions the phrase “FMLA.”

The bottom line is that FMLA issues can often be quite complex, since there are many federal regulations that define the various rights and responsibilities of you and your employer for all sorts of situations that might arise. Can a chiropractor certify my need for medical leave? Can a psychologist? A therapist? What if a husband and wife both work for the same employer – do they both get 12 weeks? So there are a lot details that define your rights, which is why there are board-certified employee rights lawyers to help employees protect and enforce their rights.

When does someone have an FMLA case against their employer?

There are two ways the law says the employer screws up on FMLA: either they “interfere” with your FMLA rights, or they “retaliate” against you for exercising your FMLA rights.

“Interference” claims occur where, perhaps with no bad intent, the employer simply gets in the way of your rights under the FMLA. Some examples of this:

1) The employer has a standard absence policy, where you are fired when you reach a certain number of absences within a certain time frame, such as six months. The employer counts protected FMLA leave toward this and you are fired for exceeding the maximum absences.

2) The employer decides to make some personnel changes while you are on FMLA leave, and when you return, the employer can only place you in a lower-status position because of the changes.

3) The employer holds you responsible for missing a sales quota and you are demoted or fired as result, but part of the sales quota period included your FMLA leave when you weren’t able to be at work to engage in sales.

“Retaliation” claims are exactly what they sound like. The employer intentionally treats you worse because you had to take FMLA leave. While this can come in all shapes and sizes, some examples of these are:

1) The employer returns you to your position after your leave, but finds a non-legitimate reason to fire you a week later knowing that you’ll need to take more FMLA leave in the near future.

2)  The employer knows that you are about to take FMLA leave and finds a non-legitimate reason to fire you two weeks ahead of time.

Need help?

If you think your rights under the FMLA have been denied or interfered with, or that you’ve been retaliated against:

CALL the O’Brien Law Firm NOW at (512) 410-1960 to get set up for a free consultation, OR

set up a FREE phone consultation yourself on our online self-scheduling system, OR

fill out the form below so that we can get to know you and your situation.

Your information is confidential and the form submission goes directly to board-certified employee rights lawyer Kerry O’Brien for his review.

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