FMLA Lawyers | Leave of Absence
Sometimes employees need to take a leaves of absence for unforeseen circumstances. This could be an illness or other ailment that prevents the employee from working. Under FMLA law, qualified employees are given a certain amount of days off to either take care of their own illness/condition or to take care of a family member’s illness/condition. The employer must hold open that job position for the employees return. If the employer retaliates against you for taking a leave, you can hire a FMLA lawyer and fight back.
Read on to learn more about your rights. This page covers the following:
- FMLA Laws That You Should Know
- Defining a Serious Medical Condition
- Covered Employers and Employees
- Is a Leave of Absence Under FMLA Paid?
- What is the Difference Between FMLA and CFRA?
- Violations by Employers
- What Happens if You Lose Your Job When You Take Leave?
FMLA Laws That You Should Know
Work and family are the two main concerns. FMLA was enacted to help employees balance work life with the unexpected events of family life that are medical-related. FMLA covered employers are forced to provide their employees with unpaid time off for reasons that are covered in this act. Below are the general allowances of FMLA:
- Employees can take up to a total of 12 weeks of unpaid leave, within a 12-month period for these events:
- Taking care of a newborn baby that is under 1-year old
- Taking care of a new foster child or adopted child, within 1 year of the new placement
- Taking care of a spouse, child, or parent who has a serious medical condition
- “Parents” under FMLA does not cover in-laws. This means that an employee would not be able to take time off to care for a mother-in-law
- Caring for the employees’ own health, when he/she has a serious health condition that disables her/him from work
- To take care of the things necessary, when a military family member is on active duty
- Employees can take up to 26 weeks of unpaid leave, within a 12-month period for:
- Taking care of a spouse, child, parent, or next of kin (under the employee’s legal custody) who is a covered service member with an injury or illness
Defining a Serious Medical Condition
A serious medical condition is when someone has an illness, injury, impairment, or physical/mental condition that involves one or more of the following:
- Being incapacitated for a period of time, due to inpatient care in a hospital, hospice, or residential care facility
- Being required to miss work, school, or a routine daily activity because of the illness, injury, impairment or condition AND needing treatment by a health care provider
- Being pregnant or needing prenatal care
- Having a chronic, serious health condition such as asthma, diabetes, or epilepsy
- Being permanently or having long-term incapacity due to untreatable conditions such as Alzheimer’s, stroke, or terminal diseases
- Requiring absences for more than 3 consecutive days for multiple treatments, including recovery time
For a serious medical condition to be established, the employee will need to have done the following:
- Visited a health care provider on 2 separate occasions AND have more than 3 days of absence due to incapacity
- Have visited the health care provider within 7 days of the incapacity, in order to establish the serious medical condition
- The 2 visits to the health care provider must be within a 30-day period, beginning with the date the incapacity started
- The second visit must be determined as necessary by the health care provider, not the employee. The 2nd visit must also occur during the 30-day window
FMLA Covered Employers and Employees
FMLA covered employers and employees must meet certain criteria before this act protects them. For employers, these are the qualifications:
- A private-sector employer must have 50 or more employees on payroll for a minimum of 20-weeks in a calendar year. The employees must be within 75-miles of the worksite to be considered towards the 50 employees on payroll.
- A public agency (local, state, or federal government) does not have minimum count of employee requirement. The public agency is automatically covered.
- Public or private elementary or secondary schools are also covered under FMLA with no minimum employee count requirement.
These are the qualifications for employees:
- Must have worked for the same employer for a minimum of 12 months and at least 1,250 hours before taking FMLA leave. To meet the requirement for hours, the employees must have actually worked those hours; sick leave and holidays do not count towards the hours.
- Must work for an eligible employer.
- Must work at a location that is within a 75-mile radius of the employer’s worksite that has at least 50 employees.
FMLA lawyers know there can be certain exceptions to these rules, occasionally. California does follow this federal law, so if you have unanswered questions about taking leave under this act talk to an FMLA lawyer ASAP. Though not required in FMLA, an employer is allowed to request proof of a serious illness before granting the employee FMLA leave.
Is a Leave of Absence Paid?
No. When you take leave under FMLA, it is unpaid. Below are two ways that you may be “paid” during leave.
- Depending on your company policy, your employer may offer paid time off for maternity or paternity leave. California state disability insurance does pay women a portion of their wages for six weeks. But that is a state benefit and not a company perk.
- Some employers may force employees to use up their accrued vacation time before FMLA leave occurs. This varies by employers, so you’ll need to check with HR to see what the company policy is.
What is the Difference Between FMLA and CFRA?
FMLA is a federal law that covers rules for medical and family leave and CFRA is a California Act that covers similar areas of the law. Both FMLA and CFRA are very similar to each other, but there are key differences that you should know about if both laws can apply to your employer:
- Disability due to pregnancy is covered by FMLA; CFRA does not cover this. CA’s Fair Employment & Housing Act also covers pregnancy disability leave.
- FMLA does not count registered domestic partners as spouses; CFRA does cover this
- FMLA covers “qualifying exigency” due to an employee’s or family member’s active military service; CFRA does not cover this
- Taking leave to care for a covered service member who is a spouse, child, parent, or next of kin that is ill or injured is available under FMLA (up to 26 weeks in a 12-month period); CFRA only covers a CFRA covered family member (up to 12 weeks)
Talk to our law firm if you are unsure of what type of leave you should or could be taking. It’s a good idea to know what your options and rights are.
FMLA Violations by Employers
Employers violate the law at times. Luckily for employees, the Family and Medical Leave Act provides a guide to determine what is legal or illegal for employers to do. As mentioned before, FMLA leave allows up to 12 weeks of leave during a 12-month period for medical reasons. When all obligations are met, on the part of the employee, the employer must comply with the law and allow uninterrupted leave. Below are several of the most common legal FMLA violations by Employers:
- Firing the employee for taking a leave of absence
- Refusing to allow the employee to take the leave (even though they qualify)
- Not continuing to provide health insurance
- Employers can ask for periodic status updates while the employee in on FMLA leave, but when it becomes hounding or pressuring the employee to come back prematurely, it may be an FMLA violation
- Disciplining or firing an employee for taking leave [Dudley v. Department of Transp.]
- Not informing employees of their rights and obligations, regarding FMLA leave
- Not recognizing employee’s notice that leave is needed for a covered reason
What Happens if You Lose Your Job When You Take FMLA Leave?
The reason that the FMLA was established was to protect employees when they need to take leave from work. That means that when you take FMLA leave for any covered reason, your job is protected. When the employee returns from leave, there must be a job available for him/her to come back. It doesn’t have to be the exact same job, but it needs to be similar and equivalent to the job that he/she previously had; the pay should be equal and the job duties should be similar. Along with that, acquired benefits that the employee had before the FMLA leave must also be restored when he/she comes back to work.
So, what happens when you lose your job when you come back to work after taking FMLA leave? If you suspect that the job termination is related to you having taken FMLA leave, talk to an employment lawyer immediately. It is unlawful for an employer to use your medical/family leave as a reason to terminate you from your position.
FMLA lawyers are here to help ensure that you are receiving your leave rights as an employee who works for a covered employer. Whether you are needing to be reinstated to a lost job, get your salary back to where it was before the leave, or you suffered from any other violations by your employer, an FMLA lawyer can help you. Contact one of our lawyers today to get a free consultation to see if you have a good case.