The Family and Medical Leave Act (FMLA) is a federal law administered by the Federal Wage and Hour Division of the United States Department of Labor.  The act provides that qualifying employees have the right to take a leave from work for themselves or a family member for up to 12 weeks in a 12 month period without fear of losing employment due to the fact that they are going out on the leave.

Who is covered?

Only employers who have at least 50 employees working within 75 miles of the employee’s worksite are obligated to provide FMLA leave.  Only employees who have worked at least 12 months for the employer and have worked at least 1,250 hours during the 12 months immediately before the date of the FMLA leave begins are eligible to take the leave.

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What kind of leave qualifies for FMLA leave?

The following types of situations may qualify for FMLA leave: (1) parental leave after the birth of a child; (2) pregnancy leave (where doctor requires bed rest or there is a pregnancy-related complication); (3) adoption or foster care; (4) medical leave to care for family member with a serious health condition; and (5) medical leave for your own serious health condition. 

What is a “serious health condition”?

A serious health condition is an illness, injury, impairment, or physical or mental condition that either involves (1) inpatient care (i.e. overnight stay in a hospital, hospice or residential medical care facility) or (2) continuing care by a health care provider. 

An overnight stay at a hospital, hospice or residential medical care facility is an automatic trigger for FMLA eligibility. In a continuing care situation, treatment that results in an incapacity (inability to work, go to school or participate in other daily activities) of more three consecutive calendar days and two or more in-person visits to the health care provider within 30 days of the date of the incapacity will qualify the trigger for FMLA eligibility.  Examples that may qualify as chronic and/or continuing medical conditions include, but are not limited to the following: pneumonia, surgery, broken/fractured bones, asthma, diabetes, epilepsy, severe morning sickness during pregnancy, Alzheimer’s, severe stroke, terminal disease, cancer, severe arthritis, kidney disease and treatment for substance abuse by a health care provider

What kind of notice does your employer have to give you regarding the FMLA?

  1. Once you notify your employer of an FMLA qualifying medical leave, your employer must notify you that you are eligible to take an FMLA leave within five business days.
  2. Whenever you are told that you are eligible to take an FMLA leave, your employer also has to provide you with a written notice of your rights and responsibilities under the FMLA leave.  This written notice must also explain any consequences of your failure to meet these obligations under the law.
  3. Within five days of when your employer has enough information to determine whether your leave is FMLA qualifying, your employer must notify you, in writing, as to whether the leave will be designated and counted as FMLA leave. 

In other words, even if you don’t specifically tell your employer that you want to go on FMLA leave, if your employer has enough information to determine that your illness or chronic condition triggers FMLA eligibility, then your employer is required to tell you of your option to take FMLA leave.  This allows employees to have an informed choice regarding use of FMLA leave time or being charged sick days.  Unlike sick days, days out on FMLA leave cannot be used to discipline an employee in an allegation of excessive or chronic absenteeism.

What are the different kinds of FMLA leave available?

There are three different types of FMLA leave available: (1) continuous FMLA leave, (2) intermittent FMLA leave and (3) reduced schedule FMLA leave.  Continuous leave is used for situations where the employee is out for more than three consecutive business days and has been treated by a doctor. Intermittent leave is used where the employee is taking time off in separate blocks of time (i.e., hourly, daily, or weekly increments) due to a serious health condition that qualifies for FMLA. Intermittent leave is particularly useful when an employee needs ongoing treatment for their condition. Reduced schedule leave is often used where the employee needs an accommodation to reduce the amount of hours they work per day or per week, perhaps to care for a family member or to reduce stress.

Why is FMLA leave so valuable to employee?

FMLA guarantees that employees will be reinstated to the same or an equivalent position with the same pay and benefits upon their return from leave.  Employers cannot take disciplinary action against an employee for using FMLA or use FMLA leave as a negative factor in discipline decisions. Additionally, an employer cannot count FMLA leave against the company’s absentee policy for disciplinary purposes.  However, the employer may discipline an employee for legitimate reasons which are independent of taking or requesting FMLA leave.

What Remedies Are Available To Employees Wrongfully Denied FMLA Leave?

An employee may file a complaint with the United States Department of Labor, Wage and Hour Division or file an action in state or federal court. The law provides in an appropriate case for economic damages, including lost wages, benefits and in many cases liquidated (double the wage loss) damages as well as reasonable attorney fees.

Knowing Your Rights and Responsibilities

If you have a question about your rights or responsibilities under the FMLA, please feel free to contact Fred Shahrooz-Scampato. Mr. Shahrooz-Scampato can provide you with the benefit of his 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.