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May 2010

The Family Medical Leave Act

What Washington Parents Need to Know

By Kenneth Sigman

Mark and Sara both work full-time, Mark in the financial industry. Their baby was due during the financial meltdown and the swine flu outbreak. The pediatrician said that their baby should not go to day care until she was 6 months old to reduce the risk of a harmful infection. This would require Mark to take time off from work in the midst of a reorganization, which he was afraid may lead to a demotion, or worse.

Fortunately for Mark, Congress enacted the Family and Medical Leave Act (FMLA) to help parents cope with the competing demands of work and family. The FMLA provides millions of American workers with the right to take up to 12 weeks of job-protected leave to care for their families. When an employee exercises her right to FMLA leave, her employer must restore her to an equivalent position upon her return. The FMLA does not create the right to paid leave, and some employers require their employees to use their accrued paid leave concurrently with their FMLA leave. Otherwise, employees may choose to use accrued paid leave during periods of FMLA leave to maintain their income.

Another benefit of the FMLA is the requirement that employers maintain an employee's health insurance while the employee is out on FMLA leave.
Keep in mind that the FMLA establishes minimum requirements for family and medical leave. Your employer may have a leave policy that exceeds the FMLA's requirements, and your state may have a law that creates greater leave rights for employees.

Are You Eligible?

Your eligibility for FMLA leave depends on two factors: Whether your employer is covered by the FMLA's requirements and the length and frequency of your employment. The FMLA applies to most public and private employers with at least 50 employees.

If your employer is subject to the FMLA, then you must determine whether you have satisfied the prerequisites for FMLA leave. You must have worked for your employer for a total of 12 months and, over the past 12 months, you must have worked 1,250 hours (an average of approximately 24 hours per week).

When Can You Take FMLA Leave?

Starting or Expanding a Family

The FMLA entitles employees to leave for the birth and care of a newborn child. Employees, both male and female, may take leave prior to the birth of their child to attend prenatal care appointments, because of incapacity due to pregnancy or to care for a pregnant spouse. Once an employee's child is born, the employee is entitled to use FMLA leave to care for, or simply bond with, the new child within one year of the child's birth. Adoptive parents enjoy similar pre- and post-adoption leave rights.

Serious Health Conditions

The FMLA entitles an employee to leave when she has a "serious health condition" that renders her unable to perform her job. The FMLA also entitles an employee to leave for the purpose of caring for a son, daughter or parent with a "serious health condition." Serious health conditions include injuries, illnesses, and mental conditions that require inpatient care or continuing treatment.

The FMLA permits employees to take FMLA leave on a piecemeal basis when medically necessary. For example, if an employee must take her child to physical therapy every afternoon for several months, she may be able to reduce her schedule by two hours per day for the duration of the therapy and use two hours of FMLA leave per day, or an employee undergoing chemotherapy periodically can take several days off for each treatment.

Employees with long-term medical conditions may have additional leave rights under the Americans with Disabilities Act.

Military

When a member of the military is deployed in support of an enemy engagement, her family members are entitled to leave to handle matters, such as making alternative child care arrangements and spending time with the service member during rest and recuperation leave. Family members are entitled to up to 26 weeks of FMLA leave to care for a service member injured during active duty.

Federal Employees

Most federal employees are covered by the FMLA. Federal employees have the right to use accrued annual and sick leave during periods of FMLA-eligible leave instead of taking leave without pay.

Exceptions

Some highly paid employees do not enjoy the full protection of the FMLA. Teachers may not be permitted to take intermittent FMLA leave that interferes with their teaching duties and may not be entitled to return from FMLA leave near the end of a semester.

Your Responsibilities

Employees must comply with several requirements to ensure FMLA leave eligibility. Employees must give their employers notice of the need for FMLA leave. If the need for leave is foreseeable, an employee must provide 30 days' notice prior to taking leave. For example, if an employee plans to have nonemergency surgery to correct a chronic back problem that will require two weeks of recovery time, the employee must give 30 days' notice to her employer prior to the scheduled surgery date. Employees should comply with their employer's leave request policies whenever possible. Providing written notice will help you protect your rights in the event of a dispute. In the case of an emergency, provide your employer with oral notice as soon as you can, and then follow up with a written statement.

Employees wishing to use their leave piecemeal should notify their employer as soon as possible and cooperate with their employer to come up with a schedule that minimizes the disruption caused to the employer.

Employers can require medical certification of an employee's need for leave at the time the leave commences and periodically throughout the duration of the leave. Employers may also require medical certification of the employee's fitness to return to work. You should submit certification requests to your doctor immediately and make sure the certification is returned to your employer: It is your job that is on the line.

Whenever you make a request for FMLA leave, keep copies of all correspondence between you and your employer and memorialize conversations with e-mails. Whenever you are out on FMLA leave, notify your employer if your anticipated return date changes.

Enforcing Your Rights

Employees whose employer has violated their FMLA rights may either file a complaint with the United States Department of Labor or sue in court. Claims under the FMLA include claims of wrongful denial of leave or health insurance, retaliation and failure to restore the employee to her position. Successful employees can recover damages, such as lost wages resulting from termination and expenses incurred to provide care for a family member as a result of the leave denial, and may also be entitled to equitable relief, such as reinstatement in their positions. Successful employees may also receive punitive damages and payment of their attorneys' fees.

If you feel that your employer is retaliating against you because you have used FMLA leave, you should consult with an attorney or call the U.S. Department of Labor's Wage and Hour Division at 866-4-US-WAGE. To succeed in an FMLA retaliation action, an employee must demonstrate that her employer took an adverse action against her because of her use of the FMLA. Often, the temporal proximity between the FMLA leave and the adverse action is the best evidence of retaliatory intent. Employees with a history of poor performance or misconduct will have a harder time proving a retaliation claim.

If you believe that your employer is wrongfully denying your FMLA leave request, whenever possible attempt to resolve the dispute with your employer before taking the leave. If you are not able to reach a resolution, consult with an attorney or contact the Department of Labor.

As you can see, the FMLA has many shortcomings from an employee's perspective. Twelve weeks of leave often is not enough time to deal with a serious medical condition, and taking leave without pay can take a toll on a family's budget. However, the FMLA can help you keep your job when your family's needs conflict with your work.


State Laws

Maryland Flexible Leave Act

D.C. FMLA

Virginia


Kenneth Sigman is a partner in the law firm of Silber, Perlman, Sigman & Tilev, P.A. He represents employees in employment matters. He can be reached at sigman@sp-law.com or you can view his firm's website, www.SP-Law.com.