Family Medical Leave Act

Wigdor LLP has successfully represented many clients who have been treated unlawfully by an employer as a result of taking a leave of absence due to serious medical issues, caregiving or family emergencies. The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of health insurance coverage under the same terms and conditions as would apply if the employee had not taken leave. The FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with at least 50 employees. In order to be eligible for FMLA leave, an employee must have worked for the employer for at least 12 months, and at least 1250 hours in the past 12 months, and worked at a location where the employer has 50 employees within a 75-mile radius.

Employers covered by the FMLA must provide their employees with certain notices regarding the application of the law. This is accomplished through several required actions. First, an employer must provide employees with general notice about FMLA leave by displaying an “FMLA poster” in plain view for all workers and applicants to see, regardless of whether or not the employer has employees eligible for FMLA leave. The poster must provide information about FMLA provisions and how to file a complaint with the Wage and Hour Division of the U.S. Department of Labor. This same information must be in an employee handbook or be distributed to each new employee upon hiring. An employer who fails to display such a posting may have to pay an assessed fine of $110 for each separate offence.

In addition, employers must notify their employees regarding their eligibility status as well as rights and responsibilities under the FMLA. The eligibility notice may be either oral or written and must inform an employee of his or her eligibility under the FMLA within five business days of the employee’s request to take a leave of absence or when the employer acquires knowledge that the requested leave may qualify as FMLA leave.  If the employee is not eligible for FMLA leave, the notice must give at least one reason why they are not. A rights and responsibility notice accompanies an eligibility notice each time it is given. It must include, among other things, notice that the leave may be counted as FMLA leave, the 12-month period for which the leave will count against the employee’s entitled FMLA leave time, any requirement for the employee to provide a certification and any consequences for failing to do so, the employee’s right to the same or an equivalent position upon his return from leave, and information regarding the maintenance of benefits. Lastly, employers must provide an employee with notice of whether or not the leave will be designated as FMLA leave and any substitution of paid leave (i.e. a requirement that employees use up their paid time off/vacation time concurrent with their leave) and/or fitness for duty requirements.

Eligible employees are entitled to 12 workweeks of unpaid leave in a 12-month period for: (1) the birth of a child and to care for the newborn child within one year of birth; (2) the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; (3) to care for the employee’s spouse, child, or parent who has a serious health condition; (4) a serious health condition that makes the employee unable to perform the essential functions of his or her job; (5) any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or (6) 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave). Under the FMLA, an employer cannot require an employee to come back to work before his FMLA leave time is exhausted by offering him light duty work. Employers can, however, require employees to use their paid time off during their designated FMLA leave that counts against the 12-week total. Employees also may opt to use their paid time off during their FMLA leave that would also count against the total leave provided by the FMLA.

Just because an employee’s allotted FMLA leave has been exhausted and he or she remains on leave and unable to return to work does not necessarily mean that he or she is subject to termination or some other adverse employment action. In some situations, an employer may have to grant an employee additional leave time to comply with federal and state laws regarding disability accommodation and/or pregnancy discrimination (e.g., The Americans with Disabilities Act and the Pregnancy Discrimination Act). FMLA cases often coincide with pregnancy and disability discrimination cases due to stereotypes regarding working mothers and preconceptions regarding the abilities of or costs associated with employees who have had medical issues. Wigdor LLP has handled numerous newsworthy and legally significant cases in this area of the law.

The issues surrounding whether the FMLA applies in a particular situation can be technical, and our attorneys can work with you to determine whether or not your situation may be covered by the FMLA or other laws concerning discrimination or the need to accommodate or provide leave to employees.