Family Medical Leave Act
The Family and Medical Leave Act (FMLA) provides up to twelve weeks of unpaid leave each year for eligible employees.
There are some other specific requirements which may impact your eligibility. Generally, to be eligible, an employee must work for a covered employer for 1,250 hours during the twelve months prior to taking leave. This means employees usually have to be employed for at least twelve months to be eligible for FMLA leave, though the months don’t need to be consecutive. Covered employers include all local, state and federal government employers and private sector employers with fifty (50) or more employees. Some employers utilize third-party contractors to administer FMLA leave related paperwork and facilitate medical certification before, during and after leave.
Retaliation Claims
Communication is key when it comes to FMLA
Employers should communicate openly about their employees’ rights to leave under FMLA. Likewise, employees must be sure to communicate consistently with their employer, medical treatment providers, and third-party contractors.
Why Take FMLA Leave?
To Treat for a Serious Medical Condition
Serious health conditions are those that incapacitate a person for more than three consecutive days and require ongoing medical care from a health care provider or a hospital stay. Chronic conditions may also qualify as serious medical conditions if they cause periods of incapacity and require medical treatment. Pregnancy and related health problems such as morning sickness and high blood pressure are considered serious health conditions under FMLA. Prenatal care including appointments and mandatory bed rest are also qualifying conditions. Other common examples of serious medical conditions covered by FMLA include pneumonia, cancer, diabetes, depression, substance abuse disorders, autoimmune conditions, serious injuries and surgical procedures.
To Take Care of a Family Member with a Serious Medical Condition
FMLA also allows employees to take leave to care for a family member suffering form a serious medical condition. The family member must be a spouse, son, daughter, or parent. Employees who act as a parent to a younger sibling may also qualify for FMLA leave. Both mothers and fathers may take FMLA leave to care for and bond with a newly born, adopted or fostered child but the leave must conclude within the twelve months following the child’s birth or placement.
What Happens Before, During and After Leave?
Before taking FMLA leave, employees must be made aware of their rights. Covered employers must post a notice of FMLA rights somewhere in the facility where employees can view and read their rights. Additionally, once an employer becomes aware of an employee’s need to take FMLA leave, they must provide the employee with a specific notice of that employee’s rights under FMLA. An employee should give their employer thirty days notice prior to taking FMLA leave unless an emergency situation prevents them from doing so. An employer may require medical certification of a serious health condition and may even require an employee to get a second or third opinion from various medical professionals.
During FMLA leave, employers are required to maintain your group health plan benefits so employees remain covered as they would while working normally. Employees should maintain communication with their treatment providers and employers during leave to ensure a smooth transition back to work.
At the conclusion of a period of leave, employers are required to return employees to the same or an equivalent job. Employers often require medical certification of an employee’s readiness to return to work at the conclusion of a period of leave.
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Intermittent vs. Continuous FMLA leave
FMLA leave may be taken intermittently or continuously. For example, an employee who requires regular medical visits to monitor a serious health condition may take one day per week of intermittent FMLA leave to attend medical appointments. In contrast, an employee who suffers a serious injury may take twelve consecutive weeks of leave to treat for the injury.
Retaliation and Interference
Employers are prohibited from interfering in an employee’s efforts to assert their rights under FMLA. Employers also may not retaliate against an employee who chooses to take FMLA leave to treat for a serious health condition or care for a family member. FMLA interference and retaliation related to leave taken for a serious health condition may overlap with disability or gender discrimination under the ADA, Title VII and the PHRA read more about disability discrimination here and pregnancy discrimination here. If you or a loved one have experienced interference or retaliation related to FMLA leave, call today and speak to a member of our experienced team of lawyers.
Examples of Protected Activities
Examples of protected activities include taking FMLA leave to treat for a serious health condition or to care for a close family member with a serious health condition, requesting a reasonable accommodation due to a disability, filing a complaint with or participating in an investigation by a regulatory agency and/or reporting discrimination in the workplace. Adverse employment actions take many forms but generally involve changes to the terms and conditions of employment and may include intimidation, threats, pay decreases, demotion, reassignment, and even termination.
