Family Medical Leave Act (re-post from 2007 entry)

Many people have a vague familiarity with the Family and Medical Leave Act. It is an important and useful tool that many employees can take advantage of, and something that is often overlooked by employees. I wanted to share with you the basics of FMLA. Feel free to share this information with friends or family members. Most of us will have a need sometime in our lives to use this mechanism of protecting our job.

FMLA provides employees with up to 12 weeks of unpaid leave in a calendar year, with job protection. All public employers of any size are covered under FMLA, and private employers with 50 or more employees. Employer must be “engaged in commerce or an industry or activity affecting commerce.” 29 U.S.C. Section 2611 (4) (A) (i). (very broad language used here)

What employees are eligible? Anyone who has worked at least 1250 hours during the preceding 12 months, and who has been employed for at least 1 year prior to the date leave is requested.

What types of leave are covered under FMLA? Birth of employee’s son or daughter; Placement of child for adoption or foster care; To care for close family member with “serious health condition”; If employee suffers from “serious health condition” which renders employee incapacitated from performance. For what constitutes a serious health condition, see below.

What type of notice must be given? If the leave is foreseeable, employee must give 30 days notice. If leave is not foreseeable, employee must provide notice “as soon as practicable” under the circumstances. Also, notice under FMLA does NOT have to be in writing, nor does it have to mention FMLA. This will surprise many people. Request only requires an employee to give notice of need for leave which may constitute FMLA eligibility. However, I advise my clients to make the request in writing and to mention FMLA. Why beat around the bush?

What are types of conditions that courts have upheld as being “serious health conditions”? Well, as you could have guessed, it must be serious- chicken pox, asthma, pregnancy related issues that impact ability to perform job function, etc. Indeed, this analysis is done on an ad hoc basis, and therefore depends on the individual circumstances.

What job is protected? The same or similar job you had prior to requesting the leave. To be more technical, “An equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment”.

Can an employer retaliate? No. Employer cannot “interfere with, restrain, or deny” employee’s right to exercise rights under FMLA.

If I receive workers’ compensation benefits for a work-related injury, can my employer also count my time out of work as FMLA time as well? Yes, if they provide you with written notice. This generally does not happen, but it may if certain requirements are met.

Is my job protected simply by my receipt of workers’ compensation benefits? No. And this is an important distinction between work comp leave and FMLA. If you are injured at work, the employer has no obligation to protect your job. However, with FMLA- assuming you meet the requirements, your job is protected. Now, an employer cannot fire you for filing a workers’ compensation claim, but they can couch your firing in other terms- such as “lack of work”, “excessive absence”, etc. So, an employer cannot retaliate against an employee for filing a work comp claim, but unless the employee has a contract that says otherwise, an employer can fire you for just about any other reason so long as it’s not in violation of public policy (ie, discriminatory).

I hope this summary has been helpful. Feel free to email me at mcardamone@krasno.com should you have any questions. Or call 215-206-9068

-Michael W. Cardamone, Esq.

PA Work Comp Lawyer

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