Medical and Family Leave

Medical and family leave from work is something that virtually all employees should have a right to but relatively few do. Many employers offer employees a few paid sick days and some paid personal days but only some employers, typically large employers, will offer medical or family leave. More often than not, leave for a serious medical condition is left to a third-party insurance carrier that offers benefits for short or long term disability. However, having such insurance does not protect your job. That said, medical and family leave is guaranteed to some employees and required of some employers by law.

The Family and Medical Leave Act or FMLA was enacted for the purpose of providing certain employees with job protected leave for some family and medical reasons. It was also passed so as to ensure that employees with health benefits at work did not lose them while on leave. With the exception of certain designated “key employees,” the FMLA covers employees who work at a location where the employer has 50 or more employees or 50 or more employees within a 75 mile radius, who have been working for at least 12 consecutive or even non-consecutive months and have accumulated 1250 hours of work sometime during the 12 months before the need for leave.

If an employee is covered, then he or she will be entitled to take up to 12 weeks of unpaid leave each year for: (1) a serious health condition; (2) to care for a family member with a serious health condition; or (3) for the birth or care of a newborn or adopted child. Also, up to 26 weeks of leave is allowed for a spouse, son, daughter, parent or next of kin to care for a member of the Armed Forces or National Guard. This leave can be taken altogether or in short periods of time either on a regular basis or when it is needed. It is important to understand, however, that any such leave does not get tacked on to the existing leave an employer may offer. Instead, it will run concurrently. So, for instance, if an employee has two weeks of paid sick leave he or she still only gets 12 total weeks of leave not 14.

Unfortunately, not all leave that appears to fit within these categories will qualify. For instance, a “serious health condition” is limited to only certain “serious” conditions. Some of those include inpatient care at a hospital, inability to work for at least 72 hours plus specified treatment by a doctor or incapacity or treatment due to a chronic serious health condition.

If there is coverage and leave is needed, then there are specific steps that must be taken to use the leave. First, the employer must be notified. If the leave is foreseeable, notice must be given 30 days in advance. Verbal notice is perfectly fine but doing so in writing will ensure that there is no mistake. If leave is not foreseeable, as would be the case if there was a sudden hospitalization or other medical emergency, leave must be requested as soon as possible but no later than 2 days after learning of the need for leave. If leave is requested, an employer must then explain the employee’s rights under the FMLA and any requirement for a medical release before returning. An employer also has the right to ask for a doctor’s certification that the leave was necessary and really a “serious health condition.” There is a specific form for this and employees need to be sure that their doctor receives it and fills it out promptly, completely and legibly because it must returned within 15 days. An employer also has the right to request a second opinion if they question the certification but they are required to pay the cost.

While on leave, there is no right to be paid but employees can use any available paid leave that the employer provides. In the example provided above, if an employee has two weeks of paid sick leave, those two weeks can offset two of the unpaid FMLA weeks. Also, employers are required to continue the same health benefits that are provided to employees that are not on leave. However, employees must still pay their share. If an employee does not return to work from medical leave, the employer can seek reimbursement for their share of the costs unless the reason for failing to return is due to a continuation of the reasons for the leave.

Finally, the FMLA demands that employees returning from leave be reinstated to the same or an equivalent position, with equal pay and benefits. The only exception is if the employer would have terminated the employee anyway as in the case of a preplanned reduction in force. If an employee cannot return to work after FMLA leave rights have expired, the FMLA does not require that he or she be retained. However, employees may have the right to accommodation in the form of additional leave or job modification if they are also covered under other laws like the Americans with Disabilities Act, for example.

The FMLA also protects employees from employer interference with their right to leave and from discriminating or retaliating against them for requesting or taking leave. These are important rights and, given the complexity of the law, it is important to obtain competent legal counsel before attempting to take any action under the FMLA. If a claim is brought, there are several types of remedies available to employees.

The remedies available for violations of the FMLA include the following:

• Back pay or the amount of pay loss due to the discrimination;
• Front pay or the amount of pay expected to be lost in the future;
• If there is no pay loss, any actual money lost due to the violation up to 12 weeks (or 26 weeks if the matter concerns care for a service member);
• Liquidated damages or double the amount of the pay loss;
• Interest; Reinstatement to the prior job or an equivalent job; and
• Attorneys’ fees and costs.

These remedies can be obtained through a federal or state court lawsuit as long as the claim is brought within two years of the violation or within three years if the violation is shown to be willful.

This is just a short overview of the rights and obligations under the FMLA. As you can see, it is a very complex law with many requirements, some very time-sensitive. In fact, some employers have whole departments devoted solely to the FMLA. If you have concerns or have additional questions, we encourage you to contact us so that we can help guide you and, if necessary, represent you in any case you may have involving the FMLA. To further discuss your situation, you can call us toll free at (706) 769-4410, send us an e-mail, or fill out a consultation request form and we will contact as soon as possible.