Family Medical Leave Act Attorneys in NYC | Romano Law

Family Medical Leave Act

A personal or family health crisis can have a major impact on a person’s life, including on that person’s livelihood. Various laws may offer job protection and other benefits to help employees in such instances. However, the rules are complex, and employers and employees must be aware of how they apply to a given situation.

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What Is the Family Medical Leave Act?

The Family Medical Leave Act (FMLA) is a federal statute that requires employers to provide qualifying employees with up to 12 weeks of unpaid leave per year for family or personal medical reasons. The FMLA also guarantees job protection for employees returning from the leave period. However, the law has numerous requirements that must be met before a party can take advantage of its provisions.

When Does the FMLA Apply?

The FMLA is limited in who it applies to and under what circumstances.

Eligible Parties

The FMLA applies only to qualifying employers and employees. To qualify, private sector employers must have 50 or more employees who work within 75 miles of the place of employment. Public agencies and elementary and secondary schools are also considered qualifying employers, regardless of the number of employees.

Employees must have worked for the employer at least 12 months, and for a minimum of 1250 hours during the past 12 months. The 12 months of employment do not have to be consecutive.

Qualifying Circumstances

Assuming the employer and employee are covered by the FMLA, the next issue is whether the employee is eligible for leave based on the employee’s (or the employee’s family’s) circumstances. The FMLA permits leave to be taken for the following:

  • For the birth and care of the employee’s newborn child
  • For placement with the employee of a child for adoption or foster care
  • To care for a spouse, child, or parent with a serious health condition
  • To take medical leave when the employee is unable to work because of a serious health condition
  • To handle matters arising out of a family member’s call to active duty

Serious Health Condition

A serious health condition must involve at least one of the following:

  • In-patient care in a medical facility
  • Three consecutive days of “incapacity” followed by continuing treatment
  • Chronic serious medical condition that requires treatment at least twice in any calendar year. Medical certification may also be needed.

Pregnancy also qualifies as a serious health condition, even if the employee can still work and has no medical complications.

How Does the FMLA Protect Employees?

FMLA allows employees to take up to 12 weeks of unpaid leave. This time does not have to be taken at once. It can be spread over the year. While on leave, employers must maintain the employee’s group health benefits. In addition, employers cannot terminate, demote, or reduce the pay of an employee who takes leave under the FMLA. Employers also cannot pressure employees to not take leave, and retaliation against employees for taking leave is prohibited. Upon their return from leave, employees have the right to return to the same or similar position and benefits.

Notice of Leave

Generally, an employee must give the employer at minimum 30 days’ advance notice of the need for leave, or as soon as practicable if the circumstances surrounding the employee’s need for leave are unforeseeable. The employee must also comply with the employer’s customary requirements for requesting leave. The employee does not have to mention the FMLA in the request but must provide enough information for the employer to reasonably determine whether the FMLA may apply to the leave request.

What Are the Employer’s Responsibilities Under the FMLA?

Employers must post a notice in the workplace explaining employees’ rights under the FMLA and include it in the employee handbook. New employees also must be informed.

When an employee requests leave, the employer is obligated to explain the employee’s FMLA rights regardless of whether the employee specifically mentions the FMLA. Employers must gather additional information from employees as needed to determine the employee’s eligibility under FMLA and notify employees whether they qualify for FMLA leave. In addition, employers can request medical certification or periodic recertification as a condition for leave.

Potential FMLA violations

Typically, employers run afoul of the FMLA by either incorrectly denying FMLA rights or retaliating against the employee who took leave.

Examples of FMLA violations include failing to notify employees of their FMLA rights, imposing impermissible restrictions or conditions on an employee’s leave, or terminating, demoting or reducing an employee’s pay upon that employee’s return from leave. Retaliatory actions—such as giving negative performance reviews or terminating employees because of excessive absenteeism or because work was not completed due to their leave—are also prohibited. Further, employers cannot retaliate against an employee who exercises his FMLA rights, opposes or complains about unlawful practices, or files a complaint against the employer.

How Are FMLA Rights Enforced?

The U.S. Department of Labor’s Wage and Hour Division is responsible for investigating complaints and enforcing the FMLA. However, plaintiffs are not required to file a complaint with the Division. They can file a lawsuit in federal court to enforce their rights.

While plaintiffs can go directly to court with an FMLA suit, they may have discrimination or other claims with different requirements. For example, employees denied leave may also have a claim for discrimination based on disability. Discrimination complaints must be filed with the Equal Employment Opportunity Commission prior to bringing a lawsuit.

Employers found to have violated the FMLA may be liable for compensatory damages as well as legal fees and liquidated damages.

What Rights Do Employees Have If the FMLA Does Not Apply?

The FMLA does not cover all employers and employees. However, employees may have recourse under other federal laws, such as the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Pregnancy Discrimination Act. State discrimination and leave laws may also give employees rights.

The FMLA has had a significant impact on workplaces ensuring employees are able to keep their jobs when faced with a medical issue. Employers can face challenges in determining when the FMLA applies. As a result, both parties should educate themselves on the rules and consult an attorney.

Photo by Parshva Shah on Unsplash

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