FMLA Lawyer in Orlando, FL
Medical Leave under the FMLA
The Family and Medical Leave Act (FMLA) is a federal law that requires many employers give qualifying employees up to 12 weeks of unpaid leave per year when the employee needs the time for certain medical conditions or to care for family members going through medical conditions (military personnel and family can be entitled to up to 26 weeks of leave). This law applies regardless of the company’s paid or unpaid time off policy and protects an individual’s job during the leave. After the company is aware of an employee’s need for leave, there is a notice procedure set out by the Department of Labor that helps guide the company. Even if you comply with that notice, however, there can be a variety of circumstances that lead to an FMLA lawsuit.
Who is covered | The two-part analysis
To determine if an employee is entitled to leave under the FMLA, an employer must determine if it is covered by the law, and if so, it must determine if the employee is covered by the law. Companies that employ 50 or more employees in 20 or more workweeks within the preceding year are covered by the FMLA. However, for an employee to be entitled to FMLA leave, that employee must have worked for the employer for at least 12 months, must have performed at lease 1,250 hours of service for the employer within 12 month period preceding the leave, and work at a location where the employer has at least 50 employees within a 75 mile radius.
This means it is possible to have employers covered by the law where none of their employees are entitled to FMLA leave. Moreover, a covered employer could have some facilities with covered employees and other facilities where the FMLA does not apply. This can create a challenge in forming fair leave policies that comply with the law.
How employers get in trouble under the FMLA
There are two basic types of FMLA claims: interference and retaliation. The FMLA prohibits employers from interfering with, restraining, or denying the exercise or attempt to exercise of any right under the FMLA. Common interference examples include denying or discouraging employees from taking FMLA leave—this can be as simple as saying that taking certain days of for FMLA leave could “be a problem.”
Retaliation is somewhat more complex, as claims can arise whenever an employee seeks FMLA leave and subsequently is subject of an adverse employment action. Adverse employment actions can be anything from termination to demotion, decrease in salary, or being passed-over for a promotion. Additionally, some courts have held that an employee need not be covered by the FMLA to be able to raise a retaliation claim if that employee has tried to exercise FMLA rights.
Who should be paying attention
All covered employers should be aware of the FMLA and educating their staff on the law. But in particular, covered employers should educate front-line managers. The managers on the ground are typically the group of employees who run into issues with FMLA on a day-to-day basis and they may not even be aware of it. To invoke the protections under the FMLA, an employee does not need to specifically use the word “FMLA” or even request leave due to medical reasons; sometimes a company being aware of the medical issue can be enough to invoke the FMLA. After that notice, the laws protections come into play and next steps with the employee could be quite important if a lawsuit arose. The next steps should involve a notice of the employee’s rights under the FMLA and seeing that the leave, if called for, complies with the law.
What happens when leave has run out
Under the FMLA, a covered employee is entitled to 12 weeks of unpaid leave, or 26 weeks in certain instances with military servicemembers. After that leave is expired, an employee is not entitled to more FMLA leave within a 12 month period. Notably, however, some qualifying medical conditions under the FMLA can also be disabilities under the ADA, so it is not necessarily a simple issue of counting down the number of weeks.