Family and Medical Leave Act
A federal statute, the Family and Medical Leave Act (FMLA), is available to qualifying employees in need of unpaid leave to attend to their own medical or caretaking needs or the needs of certain individuals in their care. The General Assembly in Ohio has not enacted a parallel statute under state law, so a request for leave cannot be made by every employee in Ohio.
Eligibility
To be eligible for FMLA leave, you must work for an employer who employs (or has employed) at least 50 employees for at least 20 workweeks during the current calendar year (or during the immediately preceding calendar year). This applies to both individual employers as well as joint employers and any entity succeeding to the interests of a covered employer.
You must have worked for your current employer for at least a year and at least 1,250 hours during the last 12 months.
Posting a Notice in The Work Setting
A covered employer must post a notice that explains the FMLA and the rights and responsibilities of eligible employees. The notice also must explain an employee’s rights and responsibilities if he or she wants to claim eligibility for benefits under the FMLA. Such details must include the process to be followed in lodging a complaint with the Wage and Hour Division of the U.S. Department of Labor. A covered employer that does not post such a notice or posts a notice without all of these details is subject to fines.
Do I Qualify for FMLA Leave?
Here are some examples of acceptable grounds for seeking FMLA leave:
Inability to work due to a serious medical/health condition;
Need to care for an immediate family member (i.e., a spouse, child, or parent) who suffers from a serious medical/health condition;
Birth of a child;
Placement of a child for adoption or foster care;
Any exigency that stems from the fact that the employee’s spouse, son, daughter, or parent is a member of the military service on covered active duty or has been called to covered active duty status.
What You Can Ask For
You can ask for unpaid leave for as much as 12 weeks in any given 12-month period. You may ask for leave to be taken all at once, or periodically, or in increments. “Incremental FMLA leave” is most helpful in situations where an employee either will not know from day to day that he or she will need to take time off due to a qualifying circumstance or knows that less than a full day’s leave will be needed from time to time, such as having to submit to periodic medical or diagnostic examinations or physical or mental therapy sessions.
What You Can Expect when You Apply
An employee seeking leave for the first time is not required to mention the FMLA specifically when approaching management. Indeed, if an employer becomes aware that one of its employees may be eligible for FMLA leave for a qualifying reason, even without fielding an inquiry from the employee, management has the duty to notify the employee of his or her possible eligibility under the FMLA within five business days of learning such details.
An employer is privileged to request certification of the basis for seeking FMLA leave from one’s healthcare provider(s) by providing a form soliciting such details. The employee must be allowed a minimum of 15 days to complete the form or secure the cooperation of his or her healthcare provider(s) in submitting responses to management’s request. In certain circumstances, an employer may request that the employee submit to an independent medical examination. If that happens, and such an examination is reasonable under the circumstances, your employer will be responsible for covering all fees for professional service and laboratory work that might be ordered.
Your application must be safeguarded as confidential, so only those on your employer’s staff having a need to know of your application are supposed to have access to it. These individuals would include Human Resources personnel who gather, process, and keep records relating to your application and the decision-maker(s) within the organization who are charged with the responsibility of granting or denying your request.
You are entitled to a reasonably prompt reply when you make an application. If you suspect your employer is deliberately delaying or dragging its heels just to avoid having to make a decision, you should consult a employee rights lawyer about recourse you may have in this instance.
Your employer may have questions for you as the process of making a decision on your application unfolds. This is normal and to be expected. However, those questions must pertain to the condition(s) precipitating your need to make application for FMLA leave in the first place, the nature and scope of your requested leave, and the justification for your request to take as much leave as you are requesting.
Of course, your employer cannot discriminate against you or use your application as cause to retaliate against you for some unrelated aspect of your employment relationship as it makes decisions on your application. In other words, the decision to grant or deny a request for FMLA leave must be based on the grounds supporting the request and not on such extraneous factors as an unfavorable employment review, or enrollment in a probationary period, or participation in a performance improvement program, or dissatisfaction with the employee’s having made or cooperated in making complaints stemming from alleged violations of the law or company policy.
What You Can Expect if Leave Is Granted
Your leave will be without pay unless your employer has a policy providing otherwise. If you qualify for short-term disability benefits, you may collect such benefits during your period of FMLA leave, but the 12-week maximum leave period runs simultaneously with your benefits period. If you believe you may qualify for short-term disability benefits, you should review your options with the administrator of the short-term disability program and/or an employee rights lawyer to make sure your rights and interests are not compromised.
Although your employer is not required to pay you during your period of FMLA leave, it must keep you enrolled in any group healthcare plan maintained during the period of leave.
Your position with the employer may be temporarily filled by someone else, but generally speaking you position is to be reserved for you while you are on FMLA leave or you will be offered an equivalent position, if available, upon your return.
Nevertheless, your employer still can make certain decisions about your position that management otherwise reasonably would have been able to make while you were on leave.
For example, your position could be eliminated while you are on FMLA leave, but only if that decision would have been reasonable under the circumstances if you had not been granted leave. If your position is eliminated while you are on FMLA leave, your employer should determine whether another suitable position in the organization could be made available to you upon your return assuming you qualify for such position, but management is not required to move one of your co-workers out of his or her position just to accommodate your return.
Additionally, you could be terminated while on leave if it would have been reasonable for management to take such action even if you had not been on leave at the time of your discharge. For example, an employer discovering that an employee on FMLA leave has been stealing property or falsely reporting hours worked can be subjected to immediate dismissal because the law does not require the employer in such circumstances to defer the decision to discharge until after the approved period of FMLA leave expires.
Management may decide to grant FMLA leave without subjecting you to a healthcare certification procedure or otherwise disputing your eligibility. However, since your application always is subject to periodic review, management has the privilege of reopening its investigation into your leave request even if it has been granted.
Additionally, management may have its own policy governing requests for medical or caretaker leave and that policy may make allowances for more than 12 weeks of leave. A decision to grant more than 12 weeks of leave in any given circumstance is left to management’s discretion, so a decision to grant a co-worker more leave than you is not necessarily cause for claiming that you are the victim of discrimination or retaliation in the work setting. The law focuses on the minimum obligations your employer has under the FMLA and not on any more generous terms or conditions that management might offer some or all of its employees from time to time.
What You Can Do if Your Request for FMLA Leave Is Denied
You are entitled to disclosure of the reasons for denying your application for FMLA leave. Those reasons most frequently deal with questions of eligibility, disagreement over the reason(s) cited by you or your medical professional(s) (or those of the people for whom you are caring), disagreement over the nature, scope, and/or length of the requested period of leave, and disputes over the results of a healthcare provider’s certification or interpretation of the meaning of entries in your medical record.
The law offers recourse if your application is denied or a decision to grant leave is revoked or materially amended in a manner adversely affecting your interests. You have up to two years to file a lawsuit to seek redress for an employer’s violation of your rights under the FMLA (or three years if you can prove that the violation was willful). If you win, you can recover back pay and “liquidated” damages and your employer would be subject to liability under an award granting reimbursement of the attorney fees and expenses reasonably incurred in successfully prosecuting your claim under the enforcement provisions of the FMLA.
Instead of going to court, you can elect to file a complaint with the U.S. Department of Labor. However, as clients of this law firm have discovered, the federal government does not represent the employee in those instances. Instead, the agency has the discretion to invest as much or as little as it may deem necessary or appropriate in the investigation of an alleged FMLA violation and/or pursuing an enforcement action against an employer. This extends to the latitude federal agency officials would have to enter into a consent decree in adjustment of a complaint even over the objections or protests of the complainant. This is because a complaint filed with the U.S. Department of Labor is “owned” and managed by the agency and is pursued on behalf of the federal government and not directly on behalf of the complainant. Thus, if you wish to remain in charge of the destiny of your claim against your employer under the FMLA, you should give serious consideration to hiring an experienced employee rights lawyer to help you.
If you suspect your FMLA rights have been violated, you should give every consideration to calling the Law Offices of S. David Worhatch before you hand your claim over to a federal agency to handle. While a private lawyer will charge a fee to represent you and the federal agency will not, remember that your lawyer works for you and the federal agency official works for the federal government (and not for you).