Family and Medical Leave Act (FMLA)

Family and Medical Leave Act (FMLA) Attorneys

As Toledo, Ohio and Columbus, Ohio family and medical leave attorneys, we understand the complexities employees face when they need to utilize medical leave during a difficult time period to determine a diagnosis, get surgery or other medical procedures, recover, and/or seek ongoing medical treatment. We understand the steps employees need to take in order to exercise their rights and protect their jobs under the Family and Medical Leave Act (FMLA). Given the fact that the FMLA is a complex statute that is applied to a variety of medical situations, you should contact the Family and Medical Leave Act attorneys at Bryant Legal, LLC to discuss your need to take medical leave in more detail. For your convenience, a brief overview of the FMLA as well as an explanation of your rights regarding your medical leave are below.

The Family and Medical Leave Act (FMLA), codified as 29 U.S.C. § 2601, et seq., is a federal law that entitles eligible employees of covered employers to take unpaid, job-protected leave up to 12 weeks in the following circumstances:

• when the employee is unable to work because of a serious health condition;
• for the birth of a son or daughter, and to care for the newborn child;
• for the placement with the employee of a child for adoption or foster care, and to care for the newly placed child; and
• to care for an immediate family member (spouse, child, or parent — but not a parent “in-law”) with a serious health condition.

The FMLA and federal regulations have very specific and technical requirements that must be followed by both the covered employer and the eligible employee. For this reason alone, it is important to contact an employment attorney to advise you of your FMLA rights as early as possible.

1. FMLA Overview: Am I Eligible for FMLA Leave?

In general, employers with 50 or more employees must provide eligible employees with up to 12 weeks of unpaid, job-protected leave in a 12-month period. Eligible employees may take leave all at once or intermittently, as the medical condition requires. If an employee is caring for a service member with a serious injury or illness, he or she is entitled to up to 26 weeks of leave.

A. Employer Eligibility

• Private employers – in general, must have at least 50 employees
• Government agencies (including local, state, and federal) – no requirement for minimum number of employees
• Elementary and Secondary schools – no requirement of minimum number of employees

B. Employee Eligibility

In order for an employee to qualify for up to 12 weeks of unpaid FMLA leave, whether it is taken in one block or intermittently, the following conditions must be met:

• You must have worked for your employer for at least 12 months in a row;
• You have worked for your employer for at least 1,250 hours in the last 12 months before you take leave (average of 24 hours per week); and
• You must work at a location where the employer has at least 50 employees within 75 miles of your worksite.

C. How Do I Request Leave?

First, the FMLA requires you to notify (verbally or in writing) your employer about your medical leave. For foreseeable leave (e.g., child birth, scheduled surgeries, etc.), you must provide notice no earlier than 30 days prior to leave. For unforeseeable leave (e.g., emergencies, etc.), your obligations are more flexible, but you must provide notice as soon as reasonably practicable under the circumstances.

Usually, this means complying with your employer’s policy as best as you can. For example, if an emergency situation occurs, conduct your best efforts under the circumstances to inform your employer that you going through a medical emergency and provide your employer with enough information accordingly. Your FMLA documentation can be also be backdated to cover any absences associated with the leave. Best practice is to notify your employer as soon as possible and keep a record as to when, how, and to whom notice was provided.

Second, your employer must notify you whether you are eligible for FMLA leave within five business days. For example, let’s assume you are involved in a motor-vehicle accident that requires you to stay in the hospital for a few days and require follow-up treatment. Assuming you notify your employer as soon as reasonably practicable under the circumstances, your employer has a duty to determine whether your absences are FMLA-qualifying or not.

Third, (if eligible) your employer must provide you with your FMLA rights and responsibilities, as well as any request for certification by your health care provider.

Fourth, you must provide a completed certification to your employer within 15 calendar days (no earlier than 15 days), but it can be extended by your employer.

Fifth, your employer must notify you whether your leave has been designated as FMLA within 5 business days of receiving your completed certification. Finally, you have an obligation to stay within the limits in your initial certification. In the event you are absent beyond the initial certification, your employer may request a re-certification.

2. Employee Remedies: The FMLA Prohibits Interference and Retaliation

Although it is a best practice for employers to be empathetic to their employees when it comes to the use of medical leave, oftentimes employers simply do not want to adhere to the specific requirements of the FMLA. The results can profoundly affect an employee during this difficult period. Fortunately, the FMLA prohibits a covered employer from interfering with or retaliating against eligible employees for exercising (or attempting to exercise) his or her rights to medical leave, whether the leave is used all at once or intermittently.

A. FMLA Interference

FMLA interference occurs when:

1. you are an eligible employee as defined under the FMLA;
2. the employer was a covered employer as defined under the FMLA;
3. you were entitled to leave under the FMLA;
4. you gave the employer notice of her intention to take FMLA leave; and
5. your employer denied FMLA benefits to which you are entitled.

Interference can range from an employer discouraging an employee from using medical leave (i.e. expressing its concerns that an employee’s inability to work on certain days due to FMLA leave is “going to be a problem”), denying leave entirely, forcing the employee to work while on medical leave, failing to reinstate an employee after returning from leave, and anything in between.

B. FMLA Retaliation

In a similar context, the FMLA prohibits retaliation against an employee for taking medical leave. Indeed, the FMLA provides that “[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). It is also unlawful for an employer to discharge or discriminate against an employee for opposing any practice made unlawful by the FMLA. See 29 U.S.C. § 2615(b).

This means that you cannot be treated differently because you have exercised your FMLA rights. For example, the use of medical leave cannot be used as a negative factor in any aspect of employment such as hiring, evaluations, firing, or discipline. Because retaliation depends on the specific facts of each individual scenario, please click on the Retaliation category under the employment issues menu for more information. If you believe your employer has interfered with your FMLA rights or retaliated against you for exercising them, feel free to contact us to discuss your issue.

For more information about your FMLA legal issue or if you believe your employer has interfered with or retaliated against you for exercising your FMLA rights, contact a Columbus or Toledo FMLA attorney at Bryant Legal, LLC to discuss in more detail.