What You Need to Know About Your Rights and Responsibilities Under the Family and Medical Act (FMLA) 

By: Stephen S. Pennington, Esquire, and Jamie C. Ray, Esquire

Introduction

     In the early 1990's, congress recognized that an increasing number of children were being raised in situations where both parents worked outside the home. For many, the idea of starting a family, or expanding the family, was complicated by the fact that both parents worked. In still other homes, families struggled because a family member with a serious medical condition such as diabetes or asthma would often lose time from work because of illness. Congress responded to these common situations with a piece of legislation known as the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§2601 et seq. In 1993, President Bill Clinton signed the FMLA.

     At the Center for Disability Law and Policy, we often receive inquiries from people who, because of a medical situation, find themselves unable to work for a short period of time. A common concern among these individuals is how to maintain both health benefits and employment. The FMLA is a federal law which addresses these and other concerns. This article will explain who is covered under the FMLA’s protections, and the responsibilities of both an employer and an employee under the law.

What is the FMLA?

     The FMLA is a law which provides eligible employees who have a “serious health condition” with an opportunity to take up to twelve weeks of unpaid leave during a twelve month period. During periods of qualified FMLA leave, the employees job is protected, and in most cases, the employer is required to continue the employee’s health benefits at no cost to the employee. Upon return from FMLA leave, the employee must be reinstated to his or her position, or placed in a “comparable” position. The FMLA also allows an eligible employee to take FMLA leave if a family member has a “serious health condition”, and the employee must act as a care giver.

Who is eligible for FMLA leave?

In order to qualify for FMLA leave you must:

• be employed by an employer who has (50) fifty or more employees. “Employees” includes those people who work for the employer part-time. In determining the number of “employees”, you can consider people who work at other locations, but they must work within a 100 mile radius of the place where you report to work;

• have worked at the same employer for a minimum of one year;

• have worked at the same employer for a minimum of 1,250 hours within the preceding twelve (12) months. In calculating the twelve month period during which your working hours will be counted your employer can use one of four methods, but it must notify you of which method it will use. Your employer may: 1) use a “calendar year”, (2 use a “fixed leave year” (for example, your employer fiscal year), 3) use your “anniversary date” of employment, or 4) calculate the twelve month period by measuring backwards from the date when you initially begin any period of qualifying FMLA leave;

• you or a “family member” have a “serious health condition” that leaves you temporarily unable to perform your job. A “serious health condition” may include pregnancy. The FMLA also allows for qualifying leave for the birth, adoption, or foster placement of a child. Either parent may take FMLA qualifying leave for this purpose. The FMLA defines “family member” to include a parent, spouse or child.

What must I do in order to take FMLA leave, and what are my responsibilities?

     Should the need for FMLA leave arise, you must notify your employer, as soon as possible, of the need for leave. You are not required to specifically tell your employer that you are requesting “FMLA leave”. However, you must give your employer enough information to determine that the leave you are requesting is “FMLA qualifying”. This means you must provide the employer with sufficient information to determine whether you or a family member have a “serious medical condition”, or that you or your spouse are pregnant or adopting a child. When you request leave, your employer may require you to provide written “certification” of a “serious health condition” from your physician or the physician of the family member for whom you must provide care.

What must my employer tell me about my rights under the FMLA?

     Your employer is required to inform you of your rights and responsibilities under the FMLA. Your employer must also be available to answer questions you may have concerning the FMLA. If you have a disability, your employer is required to comply with applicable state and federal anti-discrimination laws, and provide you with information on the FMLA in an accessible format. An employer must provide written notice detailing an employees rights and obligations under the FMLA and explaining any consequences if the employee does not meet his or her responsibilities when taking FMLA leave. Notice of your rights and responsibilities under the FMLA must be given no less than the first time you request FMLA qualifying leave within a six month time period. Where feasible, notice should be given within one or two business days of your request.

     If your employer has an employee handbook or other written material which includes information on leave policies, information on the FMLA must be included. If your employer doesn’t have written leave policies, written notice of your rights under the FMLA must still be provided to you. Your employer may choose to post this information in a common area at your place of employment, using a poster provided by the Department of Labor. In addition, your employer is required to provide you notice of:

• your right to substitute paid leave (if available) for FMLA leave, and whether the employer will require the use of paid leave (such as available sick or vacation time);

• any requirement that you as an employee make “premium payments” in order to maintain health benefits during FMLA leave, the arrangement for making such payments, and the consequences of failure to make payments on a timely basis;

• any requirement that you present a “fitness for duty” certificate from your physician in order to return to work at the conclusion of FMLA leave, and;

• your potential liability for re-payment of healthcare premiums paid by the employer during FMLA leave if you fail to return to work.
   

What can I do if I believe my rights under the FMLA have been violated?

     Unlike many other employment laws, the FMLA does not require you to “exhaust administrative remedies” by filing a complaint with an agency such as the Equal Employment Opportunity Commission (EEOC) before you can go to court. If you file a complaint in court, you may be able to get your job back, and/or recover wages you lost, and recover expenses you incurred for medical care as a result of your employer’s failure to give you FMLA qualifying leave. If you believe your rights under the FMLA have been violated, you should talk to an attorney immediately because the law limits the amount of time you have to bring your case to court. You may also want to review the “Checklist for FMLA Issues” following this article.

For more information on the FMLA, you may contact Attorney Steve Pennington or Attorney Jamie Ray at (215) 557-7112.

Family and Medical Act (FMLA) checklist.