Family and Medical Leave
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Yes. An employee may use FMLA leave during pregnancy or after the birth of a child. A mother can use 12 weeks of FMLA leave for the birth of a child, for prenatal care and incapacity related to pregnancy, and for her own serious health condition following the birth of a child. A father can use FMLA leave for the birth of a child and to care for his spouse who is incapacitated (due to pregnancy or child birth).
Employees may use FMLA leave for any period of incapacity or treatment due to a chronic serious health condition. A chronic serious health condition means one that (1) requires “periodic visits” for treatment by a health care provider or nurse under the supervision of the health care provider, (2) continues over an extended period of time, and (3) may cause episodic rather than continuing periods of incapacity.
I Have 12 Months Of Service With My Employer, But They Are Not Consecutive. Do I Still Qualify For FMLA?
You may. In order to be eligible to take leave under the FMLA, an employee must
(1) work for a covered employer,
(2) work 1,250 hours during the 12 months prior to the start of leave,
(3) work at a location where 50 or more employees work at that location or within 75 miles of it, and
(4) have worked for the employer for 12 months.
The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave.
If I Have To Miss Work Due To National Guard Or Reserve Duty, Will This Affect My Eligibility For FMLA Leave?
No. The men and women serving in the military are protected from a break in service due to an employee’s fulfillment of military obligations must be taken into consideration when determining whether an employee has been employed for 12 months or has the required 1,250 hours of service.
Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), hours that an employee would have worked but for his or her military service are credited toward the employee’s required 1,250 hours worked for FMLA eligibility. Similarly, the time in military service also must be counted in determining whether the employee has been employed at least 12 months by the employer.
How Soon After I Provide Notice of the Need for Leave Must My Employer Determine Whether I am eligible for FMLA Leave?
Absent extenuating circumstances, an employer must notify an employee of whether the employee is eligible to take FMLA leave (and, if not, at least one reason why the employee is ineligible) within five business days of the employee requesting leave or the employer learning that an employee’s leave may be for a FMLA-qualifying reason.
When the need for leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment, an employee must give at least 30 days notice. If 30 days notice is not possible, an employee is required to provide notice “as soon as practicable.” In all cases, however, the determination of when an employee could practicably provide notice must account for the individual facts and circumstances. When the need for leave is unforeseeable, employees are required to provide notice as soon as practicable under the facts and circumstances of the particular case.
When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee does not need to specifically assert his or her rights under FMLA, or even mention FMLA. The employee must, however, provide “sufficient information” to make the employer aware of the need for FMLA leave and the anticipated timing and duration of the leave.
Such information may include that a condition renders the employee unable to perform the functions of the job; that the employee is pregnant or has been hospitalized overnight; whether the employee or the employee’s family member is under the continuing care of a health care provider; or if the leave is to care for a family member, that the condition renders the family member unable to perform daily activities.
Additionally, the regulations require an employee seeking leave due to a FMLA-qualifying reason for which the employer has previously provided FMLA-protected leave either to reference specifically the qualifying reason for leave or the need for FMLA leave. In all cases, an employer should inquire further if it is necessary to have more information about whether FMLA leave is being sought by an employee.
No. An employee is not required to give the employer his or her medical records. The employer, however, does have a statutory right to request that an employee provide medical certification containing sufficient medical facts to establish that a serious health condition exists.
Contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. Employers may contact an employee’s health care provider for authentication or clarification of the medical certification by using a health care provider, a human resource professional, a leave administrator, or a management official. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.
An employer may deny a bonus that is based upon achieving a goal, such as hours worked, products sold or perfect attendance, to an employee who takes FMLA leave (and thus does not achieve the goal) as long as it treats employees taking FMLA leave the same as employees taking non-FMLA leave.
Sasha uses ten days of FMLA leave during a quarter for surgery. Sasha substitutes paid vacation leave for her entire FMLA absence. Under Sasha’s employer’s quarterly attendance bonus policy, employees who use vacation leave are not disqualified from the bonus but employees who take unpaid leave are disqualified. Sasha’s employer must treat her the same way it would treat an employee using vacation leave for a non-FMLA reason and give Sasha the attendance bonus.
An employee may choose to substitute accrued paid leave for unpaid FMLA leave if the employee complies with the terms and conditions of the employer’s applicable paid leave policy. Substituting paid leave for unpaid FMLA leave means that the two types of leave run concurrently, with the employee receiving pay pursuant to the paid leave policy and receiving protection for the leave under the FMLA. If the employee does not choose to substitute applicable accrued paid leave, the employer may require the employee to do so.
Employees who are eligible to take family and medical leave may be entitled to take as much as twelve (12) weeks of leave. The Family and Medical Leave Act (FMLA) is a federal employment law that allows eligible employees to take up to twelve (12) weeks of unpaid leave from their jobs for the following situations:
- Your own serious health condition
- Your child, parent or spouse’s serious health condition
- The birth or care of a newborn or adopted child
There are many requirements that have to be met in order to take family and medical leave. Unfortunately, once an employee utilizes their rights to take temporary leave from their job, employers may view them as risks for missing more time from work or costing more in health costs. The FMLA protects you against retaliation for taking leave or asking for leave.
If you believe your company has retaliated against you for taking a request for leave, our experienced employment lawyers will protect your rights. Many lawyers claim to have employment law experience. Also, many lawyers try to have it both ways and represent employers and employees. Our loyalty is simple – we represent employees.
We understand the sensitive and difficult nature of these cases and the emotional upset caused by the discrimination. We are dedicated to providing victims of discrimination with dignity and respect. For many reasons it can be difficult for victims to decide to report the discrimination and pursue their legal claims. Time is of the essence because discrimination cases have strict time limits in order to pursue such claims.