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Rights and Responsibilities Under the FMLA

Modern America has a growing number of single-parent families and two paycheck families. In recognition of some of the changes to the "traditional" model of the American family, Congress passed the Family and Medical Leave Act of 1993 (FMLA). Although state law may provide for more expansive coverage than the FMLA, the Act establishes minimum federal standards and rights to unpaid leave for employees with health problems, sick family members, or for employees who are giving birth to or adopting children.

Coverage and Application of the Family and Medical Leave Act

The FMLA entitles covered employees to as much as 12 weeks of leave in every 12-month period, in order to handle important matters like personal or family medical problems, pregnancy, or adoption. The employee's leave under the FMLA is unpaid, but the employee continues to receive health-care benefits as if he or she were still actively employed. At the end of the leave period, the employer must usually reinstate the employee in the same job or to an "equivalent" position. An equivalent position is a job having the same or similar pay, hours, work performed, work conditions, job responsibilities, job security, etc. The FMLA also provides that employees who take leave cannot be discriminated against or discharged for doing so, and it allows employees who have been discriminated against to bring suit for their lost wages and other damages.

FMLA Coverage Limitations

The FMLA does not apply to all employers, or to all employees. The FMLA only covers employers with 50 or more workers, who have employed 50 or more workers for at least the past 20 weeks. It also applies to public agencies, regardless of the number of employees, and to elementary and secondary schools, both public and private. The FMLA only applies to employees who have worked for a covered employer for a minimum of 12 months, although these 12 months do not need to be consecutive. Additionally, the employee must have worked at least 1,250 hours for the employer during the previous 12 months, at a site where the employer has 50 or more employees within a 75-mile radius.

Valid Reasons for Leave Under the FMLA

If the employer and the employee are both covered, the FMLA recognizes several valid reasons for a covered employee's right to take unpaid leave, including:

  • A serious health condition that leaves the employee unable to perform his or her job;
  • The need to care for a member of the employee's immediate family who suffers from a serious health condition;
  • Birth of a child;
  • Adoption of a child; and
  • Care of a newborn or newly adopted child.

Notice Requirements Under the FMLA

Generally, the FMLA requires an employee to give his or her employer 30 days' notice of intention to take FMLA leave, and the reason for the leave. There is no "magic language" that the employee must use in notifying the employer, nor does the employee need to mention the FMLA by name. Instead, the notice must give the employer enough information to know the employee is requesting time off, and why. This allows the employer to determine if the request qualifies under the FMLA, and allows time to find a replacement for the employee. When the need for FMLA leave arises suddenly, such as with an unexpected medical emergency, the employee may take FMLA leave without prior notice, but must give the employer as much notice as is reasonable under the circumstances.

"Serious Health Condition" Under the FMLA

The FMLA defines a "serious health condition" as an illness or injury that involves either inpatient care at a hospital (or similar facility) or continuing treatment by a health-care provider. In the case of the employee, a serious health condition is one that renders him or her incapable of performing his or her job, whether because of the condition itself or because of the need to have it diagnosed or treated. To qualify as serious, the condition must last more than a few days, and treatment by a health-care provider is required. Examples of serious health conditions include heart attacks, strokes, and spinal injuries. Depending on the circumstances, even conditions as common as morning sickness can qualify as serious health conditions under the FMLA.

Although the FMLA does not require the employee taking FMLA leave for medical reasons to get a doctor's certificate outlining the problem, many states do. In the event of a question about the seriousness of the employee's condition, the FMLA allows an employer to request that the employee get a doctor's certificate if the employee is notified of this requirement beforehand. If the employer disputes a doctor's findings, it may require the employee to get a second, and even a third opinion at the employer's expense, from a doctor not previously affiliated with the employer. The doctor must determine that the employee cannot perform his or her job, or that the requested leave is medically necessary.

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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