The Family Medical Leave Act
Employment Employee Rights Employment Wrongful Termination
Summary: The basics of the FMLA, interference with rights, retaliation and remedies.
The
Family and Medical Leave Act (FMLA)
The FMLA was enacted to help employees balance their work
life and family responsibilities by providing them the ability to take up to 12
weeks of unpaid, job-protected leave per year to take care of their own or a
family member’s serious medical condition.
How
do you qualify for FMLA coverage?
To
qualify for FMLA you must fit a certain criteria. The FMLA applies to all
public agencies, all public and private elementary and secondary schools, and
companies with 50 or more employees within a 75 mile radius. If you work for a
small private company with less than 50 employees within a 75 mile radius you
still may have some coverage under city or county ordinances or the companies
own policies. Check with your Human Resources.
Additionally,
some companies with multiple locations all reporting to a central location or
office may likewise be required to provide FMLA protection to its
employees. Consider smaller places like
convenience stores or banks, where each location does not have the requisite
number of employees in a single location, but within the 75 mile radius there
are 200 employees; then such an employer should legally be required to provide
FMLA protection.
Also to qualify for FMLA you must have worked for your
employer for the last 12 months and during those 12 months have worked 1,250
hours. Meaning, if you normally work a 40 hour work week and only took a 2 week
vacation you would have accrued hypothetically 2000 hours. Which means that
even a person who works part time at 25 hours a week and works 50 weeks a year
can be protected by the FMLA.
What
must be protected under the FMLA?
The employer MUST
provide FMLA protection for –
1.
The birth and care of a newborn child of an
employee;
2.
the placement with the employee of a child
for adoption or foster care;
3.
to care for an immediate family member
(spouse, child, or parent) with a serious health condition;
4.
if the employee is unable to work because of
a serious health condition
What
is considered a “serious health condition”?
The FMLA defines a serious health condition as an
illness, injury, impairment, or physical or mental condition that involves
either an overnight stay in a medical care facility, or continuing treatment by
a health care provider for a condition that either prevents the employee from performing
the functions of the employee’s job, or prevents the qualified family member
from participating in school or other daily activities. A Serious Health Condition involves one or
more of the following:
a) a hospital stay of at
least one night;
b) Incapacity of more than
three consecutive calendar days;
c) Incapacity due to a
serious chronic disorder which requires periodic visits for treatment (diabetes,
chronic back injury, MS, asthma)
d) Incapacity due to
pregnancy or for prenatal care;
e) Long term or permanent
disability (stroke, cancer, Lupus, Alzheimer’s disease);
f) An absence to receive
multiple treatments for restorative surgery after an injury or to prevent a
period of incapacity of more than three consecutive days.
Could
I use FMLA benefits to take care of my son if he needs to go to the doctor?
The answer to that question depends on what and how often
the child is going to the doctor. If the dependent child has the flu and you
are bringing them one time to get some medication and see the doctor that would
most likely not qualify as a serious health condition. However, if your
dependent child has Multiple Sclerosis and needs ongoing treatment then yes you
would be covered.
EXAMPLES
OF QUALFYING FMLA ABSENCES:
a) To care for a parent
recovering from stroke or treating for cancer
b) To care for a child who
is unable to attend school due to asthma or serious medical condition
c) For treatment of your own
chronic back injury or condition
d) To provide psychological
comfort for your spouse during medical testing for cancer
d) To care for an adult son
who suffers from a serious mental condition and is unable to care for him or
herself
e) Any work related injury
which prevents the employee from being able to work full duties
f) Maternity leave: leave to give birth or for pregnancy related
conditions which require the employee to stay at home.
Do
I still keep my health insurance while on leave?
Yes, under the FMLA, during your leave the employer must
maintain the employee’s health coverage under any “group health plan” on the
same terms as if the employee had continued to work.
Could
I lose my job for taking my FMLA leave?
Under the FMLA an employee must be restored to their
original or equivalent positions with equivalent pay, benefits and other
employment terms when they return from FMLA leave. Meaning if you were a Shift
Manager before leaving on FMLA and were making $15.00 per hour you cannot come
back from leave and be demoted to an associate who makes $10.00. However, an
employer can move a returning employee to alternative departments. The job the
employee returns to does not need to be exactly the same to be covered, only
similar, unless a company handbook or company employee manual provides
otherwise. Read your employee manuals as
a starting point and likewise contact your human resources department.
Q: What is an equivalent
position?
A: The position must involve
the same or substantially similar duties and responsibilities, and require
substantially equivalent skill, effort, responsibility, and authority.
What
is FMLA Retaliation and interference?
Section 105 of the FMLA and section 825.220 of the FMLA
regulations prohibit the following actions:
-
An employer is prohibited from
interfering with, restraining, or denying the exercise of, or the attempt to
exercise, any FMLA right.
-
An employer is prohibited from
discriminating or retaliating against an employee or prospective employee for
having exercised or attempted to exercise any FMLA right.
-
An employer is prohibited from
discharging or in any other way discriminating against any person, whether or
not an employee, for opposing or complaining about any unlawful practice under
the FMLA.
-
All persons, whether or not
employers, are prohibited from discharging or in any other way discriminating
against any person, whether or not an employee, because that person has —
- Filed any charge, has instituted, or caused to be
instituted, any proceeding under or related to the FMLA;
- Given, or is about to give, any information in
connection with an inquiry or proceeding relating to any right under the
FMLA; or
- Testified, or is about to testify, in any inquiry or
proceeding relating to a right under the FMLA.
Examples of prohibited conduct
include:
-
Refusing to authorize FMLA leave for
an eligible employee,
-
Discouraging an employee from using
FMLA leave,
-
Manipulating an employee’s work
hours to avoid responsibilities under the FMLA,
-
Using an employee’s request for or
use of FMLA leave as a negative factor in employment actions, such as hiring,
promotions, or disciplinary actions, or,
-
Counting FMLA leave under “no fault”
attendance policies.
Sometimes
the above cited can fall into one or both categories of FMLA violations by an
employer. If an employer does not allow you to take FMLA leave while you are
qualified that could constitute Interference.
While if the employer fires you for taking FMLA leave, than that would most
likely be Retaliation, however could
also be Interference if the firing
was also to stop you from continuing to take FMLA leave.
How do I apply for FMLA?
If you meet the above criteria or think
you meet the criteria you should go to your Human Resources person or person
acting as Human Resources and request FMLA paperwork. They will more than
likely give you what is called a “Certification”
form which you must bring to the health care provider providing service for the
qualified individual and have them fill out and return to HR.
An
employee does NOT need to request FMLA leave by terms, only the basis for the
leave and that time away is necessary.
Notification can be in writing or verbal, but for the employee’s
protection, always ask in writing using email even if just confirming with the
employer.
Every employer who required to offer FMLA
protection and becomes aware of an employee missing time from work due to a
covered event must OFFER THE EMPLOYEE FMLA PROTECTION within 5 DAYS OF
knowledge of this covered event, or of the employee missing time from work due
to an illness or condition that prohibits the employee from working. The Employer must designate the leave as
unpaid or paid time offer.
An
employee can be required by the employer to provide specific details and
information about your qualifying medical condition or that of your family
member. However, an employee is not
required to discuss the exact diagnosis or treatment options.
UNFORSEEABLE
ABSENCES:
If
an employee is hospitalized on an emergency basis, and unable to notify the
employer in advance, such unforeseen circumstances would typically be protected
under the FMLA. The Employee must notify
the employer as soon as practicable, within one to 2 business days.
Q: what if I am unable to communicate while in a
hospital such as in a coma or in ICU? In
such situations, an employee would not be required to then notify the employer
until he or she is physically able to do so.
Moreover, an employer cannot terminate an employee or deny FMLA
protection because the employee did not fill out necessary forms mailed to the
employee’s home while the employer knows that the employee is in the
hospital.
How an Employee can use the
total 12 weeks of leave.
The
employee can use the 12 weeks consecutively or intermittently a few days or
weeks not consecutive that when totaled do not exceed 12 weeks in any 12 month
period of time.
EVEN
ONE HOUR CAN BE PROTECTED – SEE FMAL SECTION 825.205
An
employer cannot force an employee to use a full day of FMLA, and must not force
an employee to use more FMLA leave than necessary to address the circumstances
that precipitated the need for the leave.
Remember that FMLA leave is
UNPAID!
Please remember that FMLA leave is usually
unpaid leave. If you are an hourly
employee and take 10 hours in a given week off to take care of yourself typically
you will not be paid for that time off unless you have PTO, sick time or
vacation time. However, each employee
who is going to be out for a long period of time or the full 12 weeks should
seek to utilize the company short term disability benefits, or if related to a
work accident, workers’ compensation disability benefits.
How
does en employer violate the FMLA?
a)
refusing to restore an employee to his or her former position if available or
to an equivalent position after FMLA leave, or purposefully refusing to do so
solely because the employee was missing time from work or exercising his or her
rights under the FMLA.
b)
Discharging, suspending, demoting or disciplining an employee because of the
FMLA absence.
c)
Failure or refusal to allow the employee to use time off under the protection
of FMLA.
d)
Termination of an employee eligible for FMLA leave as of the date needed
(example, an employee who is to give birth on January 15, and would have met
the requisite work hours as of January 1, but is terminated on December 31 to
avoid the FMLA protection).
e)
an employer that retaliates by giving an employee a false write up, a poor
annual review, or otherwise subjects the employee to discipline over
performance issues which other employees are not disciplined for
f)
any form or harassment, retaliation
which causes the employee loss of income or loss of promotional opportunities
for complaining about FMLA violations, telling other employees about FMLA
rights, or you seeking to exercise your rights under the FMLA.
g)
Any action by the employer to interfere or prevent you from the projections of
the FMLA.
h)
Any coercive behavior, threats, or intimidation to discourage an employee from
taking leave or seeking FMLA protection.
What should I do if I am
being retaliated against, interfered with or was fired after taking FMLA?
You should immediately seek legal opinion
from a trusted, proven, experienced attorney who works primarily in labor and
employment law. At Feldman Morgado, PA we have trusted attorneys who know the
intricacies of the FMLA and its protections. We also work predominantly on a
contingency fee, meaning we do not get paid, if you do not get paid because we
know in a time when you are out of work it would be impossible to pay an hourly
rate.
Basic
information is also available at the Department of Labor Website: www.dol.gov/esa/whd/fmla. Also, DOL published fact sheets are included
herein as pdf exhibits.
There
is no requirement that the retaliation by the Employer be job related to be
subject to violation of the FMLA. The
U.S. Supreme Court in Burlington N & S.F. Ry. V. White, 126 S.Ct 2405
(2006) held that relation need not be job-related to be actionable under TITLE
VII.
What
is an equivalent position?
If I lose my job and the employer
violated the FMLA, what are my remedies?
An
employee who loses his or her job due to missing time from work where the
employer has violated the FMLA is eligible for the following damages as per 29
U.S.C. Section 2617a(1):
a) Back
pay: 2 years unless 3 years for willful
violations (Sections 2617c(1) and (2);
See Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 740 (2003),
b)
Reinstatement,
c)
Or front pay in lieu of reinstatement,
d)
Plus pre-judgment interest
e)
The value of employee benefits lost.
e) An
employee also may recover liquidated damages:
an equal sum the actual damages incurred as a penalty to the employer;
f)
Plus the employer must pay the employee’s attorney’s fees and expenses of
litigation.
If you have any issues with what is laid
out above please call our offices for a consultation.