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 Article of Interest - Legal Research

Employment Law Protections For Parents of Disabled & Ill Children

Parents of children having disabilities and serious medical conditions are at high risk for employment discrimination.

by Loring N. Spolter, Esq. - forwarded by Great Lakes ADA, September 21, 2002
For more articles on disabilities and special ed visit


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


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.




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