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Rights and Responsibilities Under the FMLA
Birth or Adoption of a Child
Another common reason for an employee to take FMLA leave is the birth or adoption of a child, and the need to care for the new child. If an employee takes FMLA leave for this reason, he or she is usually entitled to begin leave when the child is actually born or adopted, but leave may begin earlier if there is either a legitimate medical reason relating to the birth, or if the presence of the employee is required to complete the adoption process.
Coordination of FMLA Leave with Paid Leave
Although FMLA leave is unpaid, both the employer and the employee are allowed to coordinate the employee's FMLA leave with paid leave, such as vacation days and sick days. An employee may voluntarily elect to substitute paid vacation, personal or family leave days, or sick days for FMLA leave days, if the reason the employee is taking FMLA leave would allow him or her to take those days as paid days off. An employer may also mandate that some of its employee's paid leave be credited against FMLA leave.
Returning to Work
Upon return to work, the employee must be reinstated to the same or a genuinely equivalent position. If the employee is not eligible for such a position because he or she needs to renew a license, pass a continuing education class, or the like, the employer must give the employee a reasonable opportunity to fulfill this requirement. The FMLA excepts from the reinstatement requirement certain "highly compensated employees," where reinstatement would cause the employer serious economic hardship provided the employer tells the employee he or she will not be reinstated after leave, and the employee does not return to work. Another exception to the reinstatement requirement is if the employer can show that the employee would have been fired even if the employee had not taken FMLA leave. This is called the "positive elimination defense." For example, if an employer closes a factory because business is bad, the employer would not have to reinstate an employee returning from FMLA leave.
Legal Help with an FMLA Issue
Congress's passage of the FMLA in 1993 recognized that changing conditions meant a new way had to be found to balance the demands of work and family. Through FMLA, Congress established a national standard of 12 weeks per year of unpaid leave for an employee facing important family problems. FMLA is designed to allow an employee to deal with these problems without cost to his or her employer and without detriment to his or her position. If you have questions about your rights under the FMLA, or if you believe that those rights have been violated, talk with an employment law attorney to learn more about your options.
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