By J.J. Talbott and Brad Larsen
The Family Medical Leave Act (FMLA) is a federal law that provides certain employees job protection and unpaid leave for a “serious medical condition” (personal or family). Often, employers do not understand their responsibilities under the law, or purposefully take action to prevent an employee from exercising their rights under the FMLA. While the FMLA is a complex law, this article is intended to assist employees in understanding their basic rights under the law and to assist them in securing the FMLA protections which they are entitled.
1) What employers are subject to the FMLA?
The first step in determining if you are entitled to FMLA is verifying whether your employer is covered under the Act, as Congress specifically excluded certain small businesses from the requirements under the Act. Therefore, the Act only applies to the following employers:
- Private companies:
- Must have 50 or more employees within a 75-mile radius of the normal work location.
- All government agencies and schools are subject to the FMLA regardless of the number of employees.
2) What employees are covered?
After you verify that you work for a covered employer, you must then determine if you are a covered employee. In order to qualify, the employee must:
- Have worked for the employer for more than one (1) year. However, this time need not be consecutive as long as it has come within the last seven (7) years. For example, if you have previously worked for the same employer, that time will also count towards this requirement;
- Have worked at least 1,250 hours in the preceding 12 month, not including vacation or PTO time;
- Work in a location that has 50 or more employees within a 75-mile radius; and
- Have a qualifying “serious health condition.”
3). What is a “serious health condition”?
Many employers struggle with the question of whether an employee’s request for medical leave is covered by the FMLA. Under the FMLA, a “serious health condition” is an illness, injury, impairment, or mental condition that involves inpatient care in a medical facility or continuing treatment by a healthcare provider. This includes not only the employees own health condition, but it also includes the need to care for an immediate family member (spouse, child, or parent), the placement or birth of a child (up to one year after the birth or placement), or any exigency related to an immediate family member being in the military on “covered active duty.” The most common serious health conditions that qualify for FMLA leave are:
- conditions requiring an overnight stay in a hospital or other medical care facility;
- conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and require ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);
- chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year;
- pregnancy related conditions/treatment (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest);
- permanent or long-term conditions such as Alzheimer’s, strokes, or terminal disease;
- conditions requiring multiple treatments in recovery from treatments, such as cancer, severe arthritis, and kidney disease; and
- treatment for substance abuse by healthcare provider or by provider of healthcare services.
4) What rights are you entitled to?
If both you and your employer are covered under the FMLA, and you have a “serious medical condition,” the employee is entitled to certain rights, including:
- Up to twelve (12) weeks of unpaid leave in a 12-month period. This time can be taken in one or more blocks of time or on an intermittent basis, depending on the medical necessity;
- Job reinstatement upon the timely return from leave, in the same or an equivalent role;
- Continuation of group health benefits during the leave period. The employee is still obligated to pay premium contributions during this time; and
- Up to 26 total weeks of leave in the case of caring for a covered service-member with a serious injury or illness.
5) What obligations does an employer have to the employee?
In addition to the rights that an employee has in section four (4) above, employers are also required to:
- Post an FMLA notice explaining employees FMLA rights;
- Give all new employees information about the FMLA upon hire;
- Notify an employee when he or she may have an FMLA-qualifying leave, as soon as the employer should reasonably know that it may qualify;
- Give employees eligibility notices for FMLA leaves; and
- Note any FMLA designated leave and how much of the total leave allotment will be deducted from employee’s leave bank.
If you feel that your FMLA rights have been interfered with or violated, it is important that you speak to an attorney immediately to protect your rights as there are certain time limitations on your ability seek redress. At the Law Offices of J.J. Talbott, we have a team of attorneys who have experience dealing with FMLA violations, workplace discrimination, and wage / overtime violations that will fight to get you the benefits and wages that you are entitled. Contact our office today at (850) 437-9600 or online at www.jjcanhelp.com for a free consultation.