Family and Medical Leave Rights
Authored By: Louisiana Employment Task Force
What is the Family and Medical Leave Act?
The Family and Medical Leave Act (FMLA) gives some employees with up to 12 workweeks of unpaid, job-protected leave a year and requires group health benefits to continue during the leave. Covered employers must grant an eligible employee this kind of leave during any 12-month period for one or more of the following reasons:
for the birth and care of the newborn child of the employee;
for placement with the employee of a son or daughter for adoption or foster care;
to care for an immediate family member (spouse, child, or parent) with a serious health condition, or
to take medical leave when the employee is unable to work because of a serious health condition.
How is the 12-month period calculated under FMLA?
Employers may choose one of four options for determining the 12-month period:
- the calendar year;
- any fixed 12-month "leave year" such as a fiscal year, a year required by state law, or a year starting on the employee's "anniversary" date;
- the 12-month period measured forward from the date any employee's first FMLA leave begins, or
- a "rolling" 12-month period measured backward from the date an employee uses FMLA leave.
Are all employers required to provide FMLA leave?
No. The FMLA applies only to:
- public agencies, including state, local and federal employers, and local education agencies (schools), and
- private sector employers who employ 50 or more people for at least 20 workweeks in the current or preceding calendar year, including joint employers and successors of covered employers.
Which employees are eligible to take FMLA leave?
Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.
Do the 12 months of service with the employer have to be continuous or consecutive?
No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted.
Do the 1,250 hours include paid leave time or other absences from work?
No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.
How do I determine if I have worked 1,250 hours in a 12-month period?
Your individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months before you start FMLA leave. As a general rule, the following may be helpful for estimating whether this test for eligibility has been met:
· 24 hours worked in each of the 52 weeks of the year; or
· over 104 hours worked in each of the 12 months of the year, or
· 40 hours worked per week for more than 31 weeks (over seven months) of the year.
When can I take FMLA leave?
The U.S. Department of Labor has established a list of valid reasons for leave:
- Birth of a son or daughter to the employee and in order to care for such son or daughter;
- Placement of a son or daughter with the employee for adoption or foster care;
- Family leave in order to care for a spouse, son, daughter, or parent of the employee if such spouse, son, daughter, or parent has a serious health condition , or
- Serious health condition that makes the employee unable to perform their job.
Who is considered an immediate "family member" for purposes of taking FMLA leave?
An employee?s spouse, children (son or daughter) and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law". The terms son or daughter do not include individuals age 18 or over unless they are "incapable of self-care" because of mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA) .
If I'm covered, what do I have to do to take advantage of FMLA leave?
As an employee, these are your responsibilities:
- Notify your employer of the need for leave. For leave that is foreseeable (you knew ahead of time), you should give at least 30 days notice. For leave that is unforeseeable (you didn't know ahead of time), give notice as soon as you can. Follow your employer?s rules for requesting leave.
- Tell your employer if you need to take leave intermittently (off and on over time) or on another scheduled basis.
- If leave is needed because of a health problem and your employer wants it, provide medical certification
- Comply with arrangements to make group health benefit co-payments.
- Periodically advise your employer of your intent to return to work at the conclusion of leave if required by your employer.
- Notify your employer of any change in the circumstances for which leave is being taken.
- Provide your employer with a fitness for duty certification if required to return to work.
What are my rights and benefits as an eligible FMLA employee?
These are your rights and benefits as an eligible FMLA employee:
- up to 12 weeks of unpaid FMLA leave in a 12-month period;
- continuation of group health benefits during FMLA leave;
- restoration to the same or an equivalent job upon return to work;
- retention of accrued benefits, and
- protection from discrimination as a result of taking FMLA leave.
An employer may not take any adverse action against you for taking FMLA leave; however, any personnel action/decision that would have happened if you had continued in a work status may happen while you are on FMLA leave.
Does the law guarantee paid time off?
No. The FMLA only requires unpaid leave. However, the law permits an employee to choose, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified when the leave begins.
Does workers’ compensation leave count against an FMLA leave entitlement?
It can. FMLA leave and workers' compensation leave can run together if the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.
Can my employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?
Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.
Can my employer count time on maternity (or paternity) leave or pregnancy disability as FMLA leave?
Yes. Pregnancy disability leave or maternity/paternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer properly notifies the employee in writing.
If my employer fails to tell me that the leave is FMLA leave, can my employer count the time I have already been off against the 12 weeks of FMLA leave?
Not in most situations. Remember, you must be notified in writing that an absence is being counted as FMLA leave. If your employer was not aware of the reason for the leave, leave may be counted as FMLA leave retroactively only while the leave is in progress or within two business days of your return to work.
May I take FMLA leave for visits to a physical therapist, if my doctor prescribes the therapy?
Yes. FMLA permits you to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay or for treatment of severe arthritis.
Do I have to give my employer my medical records for leave due to a serious health condition?
No. You do not have to provide medical records. The employer may, however, request that, for any leave taken due to a serious health condition, you provide a medical certification confirming that a serious health condition exists.
Can my employer require me to return to work before I exhaust my leave?
Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment.
Are there any restrictions on how I spend my time while on leave?
Maybe. Employers with established policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave. Otherwise, the employer may not restrict your activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.
Can my employer make inquiries about my leave during my absence?
Yes, but only to you. Your employer may ask you questions to confirm whether the leave needed or being taken qualifies for FMLA purposes and may require periodic reports on your status and intent to return to work after leave. Also, if your employer wants another opinion, you may be required to get additional medical certification at the employer's expense during a period of FMLA leave. Your employer may have a health care provider contact your health care provider, with your permission, to clarify or confirm information in the medical certification. The inquiry may not seek additional information about your health condition or that of a family member.
Can my employer refuse to grant me FMLA leave?
Maybe. If you are an "eligible" employee who has met FMLA's notice and certification requirements (and you have not exhausted your FMLA leave entitlement for the year), you may not be denied FMLA leave.
Will I lose my job if I take FMLA leave?
Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies. Under limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly-paid, salaried ("key") employees.
Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job?
In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to continue FMLA benefits or to reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.
Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave.
Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12-month period" no longer have FMLA protections of leave or job restoration.
Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification or may delay reinstatement until the certification is submitted.
Can my employer fire me for complaining about a violation of FMLA?
No. Nor can the employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA.
Does an employer have to pay bonuses to employees who have been on FMLA leave?
Maybe. The FMLA requires that employees be restored to the same or an equivalent position. If an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work. The FMLA leave may not be counted against the employee. For example, if an employer offers a perfect attendance bonus, and the employee has not missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon returning from FMLA leave.
On the other hand, FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority. For example, an employee on FMLA leave might not have sufficient sales to qualify for a bonus. The employer is not required to make any special accommodation for this employee because of FMLA. The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave (as appropriate) are treated.
Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement?
In all circumstances, it is the employer's responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by the employee. Leave may not be designated as FMLA leave after the leave has been completed and the employee has returned to work, except if:
· the employer is awaiting receipt of the medical certification to confirm the existence of a serious health condition;
· the employer was unaware that leave was for an FMLA reason, and subsequently acquires information from the employee such as when the employee requests additional or extensions of leave, or
· the employer was unaware that the leave was for an FMLA reason, and the employee notifies the employer within two days after return to work that the leave was FMLA leave.
Can my employer count FMLA leave I take against a no-fault absentee policy?