Family Medical Leave Act (FMLA)
Balancing work and family life
In 1993, Congress—in an attempt to balance the demands of the workplace and the demands of family life—passed the Family Medical Leave Act (FMLA). This act allows employees under certain conditions to take a short leave of absence and at the end of the absence to have their job back.
Specific rules govern the rights and obligations of employers and of employees requesting leaves:
- Qualifying for family medical leave
- Obligations during leave
- Job restoration
- Rights against retaliation
Some states have enacted their own FMLA laws providing leave rights, but Florida has a similar law only for public employees covered under the Florida Retirement System. FMLA applies to all public agencies including state, local, and federal employers; to local schools; and to private sector employers who employ 50 or more employees in 20 or more work weeks in the current or preceding calendar year.
Qualifying for family medical leave
To be eligible under the FMLA, an employee must meet certain conditions, including—
- Work for a covered employer
- Have worked for the employer for a total of 12 months
- Have worked at least 1,250 hours over the previous 12 months
- Work at a location within 75 miles of which the employer has at least 50 employees
FMLA provides employees the right to take an unpaid leave of absence for a total of 12 work weeks during any 12-month period. The reasons for the leave can be—
- For the birth and care of a newborn child of the employee
- For placement with the employee of a son or daughter for adoption or foster care
- To care for an immediate family member (spouse, child, or parent) with a serious health condition
- To take medical leave because of serious health conditions:
- An illness, injury, impairment, or physical or mental condition that involves either any period of incapacity or is connected with an overnight stay in the hospital or continuing treatment by a healthcare provider
- Preventing attendance at work or school, or performance of any other daily activities
- Lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition that also includes treatment under the supervision of a healthcare provider or one treatment by a healthcare provider with a continuing regimen of treatment
- Pregnancy or prenatal care or conditions associated with a pregnancy such as severe morning sickness or prenatal visits to a doctor, even if one is not incapacitated for more than three days
- A chronic serious health condition which continues over an extended period of time and requires periodic visits to a healthcare provider, and which may involve occasional episodes of incapacity—e.g., asthma, diabetes
- A permanent or long term condition for which treatment may not be effective, but supervision by a healthcare provider is required—e.g., Alzheimer's, severe stroke, terminal cancer
- Any absence to receive multiple treatments or restorative surgery for a condition which would likely result in a period of incapacity more than three days if not treated—e.g., chemotherapy radiation
An employee must put the employer on notice that a requested leave of absence or a leave that already has been started may involve the FMLA. Employees are normally required to provide 30 days advance notice of their need to take leave when the need is foreseeable. Employers may also require employees to provide a medical certification supporting that the need for leave is due to a serious health condition affecting the employee or an immediate family member.
Employers may also obtain or require a second or third medical opinion and periodic recertification at the employer's expense. The employer may also require an employee to submit periodic reports during FMLA leave regarding the employee’s status and intent to return to work. An employee who requires intermittent leave to care for an immediate family member or the treat his or her own illness must try to schedule treatment so as to not unduly disrupt the employer’s operation.
Employer obligations during leave
Employers are not required to pay employees on FMLA leave, but must maintain group health insurance coverage for them on the same terms as if their work was uninterrupted. Employees may be required to pay their share of the health insurance premiums while on leave. In some instances, when an employee fails to return to work from FMLA leave, the employer may recover any premiums it has paid to maintain health coverage for the employee.
Job restoration and rights against retaliation
Job restoration is the hallmark of the FMLA. An employee returning from FMLA leave is guaranteed to be restored to his or her original job or to a job with equivalent pay benefits and other terms of employment. Use of FMLA leave cannot result in the loss of any employment benefits, nor can it be counted against the employee under a "no fault" attendance policy.
Employees denied FMLA leave or disciplined or retaliated against by an employer for exercising their FMLA rights may file a complaint with the U.S. Department of Labor, Wage and Hour Division. Additionally, aggrieved individuals may bring a private civil action against the employer for violating the FMLA. In a private civil action, the employee is entitled to recover all economic damages related to violation of the FMLA including back pay, front pay and other economic damages such as medical bills incurred when the fired employee loses health insurance. Additionally, the FMLA provides for liquidated damages—a doubling of damages if the employer cannot prove that violation of the FMLA was in good faith. Further, FMLA calls for a successful employee to be paid his or her attorney's fees by the employer.
Dedicated to defending Florida workers' rights
For assistance with asserting your rights to a leave under the FMLA, or if you have suffered retaliation as the result of taking a leave, call the dedicated lawyers of Louis P. Pfeffer, P.A. at 561-745-8011 or contact us online. We can help employees in West Palm Beach, Orlando, Martin, and throughout South Florida.
