Family and Medical
Leave Act (FMLA)
The Family and
Medical Leave Act, abbreviated as FMLA, is a federal law
which provides important job
protections to parents who take time off
from work to be with children
receiving medical and psychiatric care
or are recuperating from serious
health concerns.
The law permits
mothers and fathers to take unpaid leaves of absences
from work - with the promise of
having jobs to come back to. With FMLA,
parents can take time off from
work when their children are
hospitalized or are confronted with
"serious health conditions" requiring routine
appointments with medical
doctors, mental health counselors, physical therapists,
speech therapists and other
professionals.
Qualifying
Conditions
FMLA recognizes that
there are many illnesses, impairments, disabilities
and physical or mental
conditions which can qualify as
serious health conditions. Among the
scenarios which qualify for FMLA protection is
"treatment by a health care provider on at least one
occasion which results
in a regimen of continuing
treatment" under the provider's supervision.
Autism, many chronic or long-term physical illnesses, and
many psychiatric
and developmental disabilities fall within the law's
coverage.
Leave - For How
Long?
Leave time is also
permitted for unplanned occasions, such as days when
episodic flare ups occur. The
duration of leave may be as short as a few
hours on an occasional or sporadic basis or may last as
long as 12
weeks. To
assist children with chronic health conditions who are in need
of care giving assistance,
parents can obtain leave even on days when doctors
and therapists are not
consulted.
FMLA leave also
permits parents to obtain temporary reductions in work
schedules.
Who is Protected?
Biological parents
are not the only persons benefiting from FMLA's job
safeguards. Step-parents receive the
same protections as biological
parents, even when not married to the
ill child's father or mother or in the
absence of an official adoption.
Parents may continue to utilize FMLA leave to
assist sons and daughters who
have reached adulthood.
Short-term Leaves
of Absence
For those parents and
stepparents who must exercise frequent short term
leaves of absences, such as taking
off one day or one afternoon each
week, employers may make
reasonable job reassignments. If the
temporary reassignment is to a
position having lower pay or reduced benefits, the
employer must boost wages and
benefits to the levels previously
provided.
Employees taking
frequent short term leave periods are required to make
reasonable efforts to schedule
their absences in ways which minimize
workplace disruptions.
To be eligible to use
FMLA, the employee taking leave must:
1) have at least 12
months job seniority;
2) worked no less
than 1,250 hours for the employer during the prior 12
months;
3) work for an
employer having at least 50 employees within 75 miles of
their jobsite or the location they
report to; and
4) intend to return
to their job at the end of their leave period.
Advanced Notice
When the need for
leave can be anticipated, workers are required to
provide employers with at least
30 days advanced notice. When such
advanced notice
can't be provided, notification must occur as soon as
practicable.
Wages & Benefits
Employers are not
required to pay wages during FMLA leave periods and
may also require workers to
exhaust days allocated for paid vacation time
and sick leave before granting
FMLA-related leave.
Those employers who
normally pay for workers' health insurance premiums,
fully or partly, must continue
doing so during the FMLA leave period.
Workers taking
extended leave must be returned to the same or equivalent
positions to those previously
held.
While FMLA protects
persons employed in the private sector and the
Federal government, a number of
court decisions cast doubt as to
whether state governments have to
comply with this law. However, some states
have FMLA-type laws or
regulations protecting those within their employ.
Awards & Damages
When employees
prevail in FMLA trials, they generally are awarded a
money amount double to their
actual lost wages and certain incurred
expenses such
as payments made for COBRA insurance coverage. While
employers must prove
that FMLA violations occurred in "good faith" to escape
the doubling feature, they still
remain liable for the actual economic damages they
caused.
Judges may also
require employers to reimburse workers for "front pay",
the difference between what
will actually be earned over upcoming
months or years as compared to wages
and benefits provided by the employer
found liable for violating FMLA. Also,
employees winning their trials are
awarded additional monies
for attorneys fees and certain litigation costs.
While workers are
supposed to have fair access to FMLA leave, the U.S.
Department of Labor reports that
employers violate FMLA in an alarming
60% of the cases it
investigates. Most FMLA complaints involve claims
that employers refused to grant
leave or denied reinstatement to workers who
took time off, according to the
Department of Labor. Also, it is illegal for
employers to retaliate against persons for having sought
or utilized FMLA
leave.
FMLA Leave
Checklist
Here's an instructive
checklist which can minimize difficulties and
preserve legal rights when
seeking FMLA leave:
1. All of your
communications concerning FMLA leave should be in writing
or confirmed this way.
For memos handed in,
make certain that your copy is stamped "received".
FMLA communications made by
mail should be done so by certified, return
receipt postage. Safely store a
copy of your letter and once it is
returned, do the
same for the proof of receipt card provided by the post
office. Obtain verification of proof
of mailing with a hand stamp on a
green and white postal slip by handing
your letter directly to a postal clerk
instead of leaving it in a mailbox.
Also, consider faxing
your request and keeping the "verification" slip
produced once fax transmissions are
completed, along with the cover page
and actual communication sent.
If circumstances
don't permit sufficient time for communications to be
in writing, be sure to follow
up verbal notices with written
correspondence. Memos, return
receipt mail and fax transmissions provide "hard copy"
verification, making these "old fashioned" communications
preferable to "e-mail." Remember,
jurors can't hold an "e-mail" in their
hands.
2. Briefly state in
your memo or letter either the nature of your
child's ailment or that your
child has a serious health condition.
Employers are not
obligated to grant time off to those parents who wish
for time off to attend to
children with minor ailments but must
permit sporadic
or longer lasting leave when parents take time off to
assist children
confronting serious health concerns.
3. Be sure to mention
that the leave period will last no longer than 12
weeks.
FMLA does not
obligate employers to grant leave in excess of 12 weeks.
4. Request FMLA once
you learn it will be needed.
Although FMLA
generally requires 30 days advance notice prior to taking
leave, this rule is waived for
unforeseen circumstances. When unexpected
need arises, state this in your communication.
5. Employers have the
right to request that your child's physician
complete a form which documents
the seriousness of the ailment which
is leading to
your missing work.
To be certain that
the paperwork is completed and returned to the
employer on a timely basis, you
should obtain the physician's
completed paperwork and
personally see that the documents are provided to the
proper person at the
workplace. Employers are permitted to fire persons who
fail to submit verification
within FMLA deadlines.
6. If you sought less
than 12 weeks leave and need more time than
originally asked for, inform
your employer of this in writing - as
soon as you realize
more time is needed.
7. Keep in contact
with your supervisor or the Human Resources
Department by
communicating when you
anticipate returning to work.
If conveying this
information verbally, be sure to promptly confirm it
in writing.
Finding A Lawyer
in Your Area
Contact the National
Employment Lawyers Association's national office in
San Francisco, CA at (415) 227-
655 to ask for a listing of member attorneys
licensed to practice law in your area or refer to the
organization's website
at www.nela.org
About the Author
Loring N. Spolter is
an employment law attorney in Fort Lauderdale, FL.
Having
insulin-dependent (juvenile) diabetes, he has a special interest
in protecting the workplace
rights of persons taking leave to help
family members who have serious
medical concerns.
Mr. Spolter has led
continuing legal education courses on the Family &
Medical Leave Act for the National Employment Lawyers
Association and the
American Bar Association.
Source:
http://www.wrightslaw.com/advoc/articles/fmla.protect.spolter.htm
