Last week I posted a blog entry on the Family Medical Leave Act (FMLA), and specifically, sought to cut through the legalize so that anyone could understand the law in plain language.  You can read last week’s blog entry by following this link: http://tinyurl.com/pj6rxf4

Unfortunately, it has been my experience that a lot of managers and supervisors are not adequately trained in the FMLA law and, as a result, often unwittingly violate it.  A common violation of the law occurs with regard to a supervisor’s lack of understanding regarding the FMLA notice requirements that must be provided to every eligible employee.

For example, let’s say that you are out sick or have sustained an injury which requires that you be out of work for at least three consecutive days.  During that time out of work, you have gone to a doctor’s visit or have gone to therapy at least two times.  If your employer is aware of these events through your communicating it to them directly or via medical notes, then your employer has an affirmative duty to notify you that you qualify for FMLA Leave.  Specifically, your employer must notify you in writing, within five days of learning that you are eligible for the leave, that you qualify for FMLA leave.

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Once you are aware that you qualify for FMLA leave, then it will be your choice to decide whether want to designate your time off as FMLA leave or not.  This obligation to inform you about your about your FMLA qualification may be extremely helpful to you because, unlike sick days, days out on FMLA leave cannot be used to discipline an employee in an allegation of excessive or chronic absenteeism.

To further illustrate this point, I have known several clients who have been disciplined for abusing their sick time because, according to their employer, they had been out too many days sick.  In each of these situations, it turned out that the employer was in the wrong because on each occasion, the employer had failed to notify the employee earlier in the year that their time off had qualified for FMLA leave.  If the employer had adhered to the law, then then my clients would never have been disciplined because FMLA leave is protected time and cannot be used to discipline an employee.  Because they were never informed that their time off due to illness had been FMLA qualifying leave, their employer violated Federal law by interfering with their statutory rights.

Whether you are an employer looking for assistance with setting up policies, or an employee who feels unfairly treated, Fred Shahrooz-Scampato can provide you with the benefit of his over twenty years of experience in employment law. He can be reached at Scampato@njlaborlaw.com or (908) 301-9095 or by visiting www.njlaborlaw.com.

Fred Shahrooz-Scampato, Esquire