Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 workweeks of unpaid, job-protected leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. California law provides that certain employers must provide leave under the Family and Medical Leave Act to employees who have worked with the company for more than a year for the birth or adoption of a child or when the employee, a spouse or close family relative suffers from a serious health condition. It shall be an unlawful employment practice for an employer to refuse to hire or to discharge, fine, suspend, expel or discriminate against any individual because of an individual’s exercise of the right to family care and medical leave.
California Government Code Section 12945.2 establishes the rights and obligations of employers and employees relating to medical leave. Answers to the most commonly asked questions regarding FMLA can be found below. If your employer is failing to comply with the FMLA or CFRA, take action and contact a FMLA attorney from Kingsley & Kingsley. Further, if you think that your employer has discriminated or retaliated against you for requesting or taking medical leave, it is a good idea to speak with one of our experienced employment lawyers at 888-500-8469.
Frequently Asked Questions (FAQs) about the Family and Medical Leave Act
Q: Which employers have to provide family medical leave?
A: Employers with more than 50 employees working within a 75-mile radius
Q: Which employees are entitled to Family and Medical Leave Act?
A: To be entitled to medical leave, an employee must have worked for the previous 12 months and have worked a minimum of 1,250 hours in that year.
Q: For what reasons can medical leave be used?
A: A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave in a 12 month period for one or more of the following reasons:
- For the birth and care for a newborn child;
- For the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
- To care for an immediate family member (spouse, child, or parent — but not a parent “in-law”) with a serious health condition;
- When the employee is unable to work because of a serious health condition;
- When qualifying exigencies arise out of a family member’s military deployment; or
- When a family member’s serious injury or illness arises from military service.
Q: What is a serious health condition under the law?
A: A “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:
- Any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
- A period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
- Any period of incapacity due to pregnancy, or for prenatal care; or
- Any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
- A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
- Any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).
Q: What information must the employee provide to the employer?
A: An employee seeking FMLA leave should provide:
- Reasonable advance notice if the leave is foreseeable
- Documentation from the his/her physician as to the medical condition and expected duration of the leave.
- An estimate of the time off and return date
- The employee should try and schedule treatment to avoid disruption to the employer’s business if the need for treatment or leave is foreseeable
Q: What is an employer’s obligation under the Family and Medical Leave Act?
A: Under FMLA, a covered employer is obligated to:
- Provide up to a total of 12 weeks of unpaid leave
- Maintain an employee’s health benefits during the leave
- Maintain the seniority of the employee and count the leave time just as if the employee continued to be at work for purposes of a seniority system
- Return the employee to the same or a similar position (with similar responsibilities, pay and opportunities for advancement)
Q: What actions by an employer may be unlawful according to the Family and Medical Leave Act?
- Refuses to allow you time off for FMLA purposes; or
- Fails to pay for health insurance during an FMLA leave; or
- Orders you to report for light duty during an FMLA leave; or
- Fails to restore you to your former position or to an equivalent position after an FMLA leave; or
- Uses coercion, threats, or intimidation to discourage you from taking FMLA leave; or
- Discharges, disciplines, or demotes you because of FMLA absences; or
- Discriminates against you for opposing any practice, or because of involvement in any proceeding, related to FMLA; or
- Gives you a poor evaluation or denies you a promotion because of FMLA absences; or
- Punishes you for complaining about FMLA violations, telling others about the FMLA, or taking legal action to enforce the FMLA; or
- Denies you any rights provided by the FMLA or the DOL’s implementing regulations; or
- Uses the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; or
- Counts FMLA leave under “no fault” attendance policies
Q: What should you do if your rights have been denied?
A: Many companies require that you follow certain procedures in reporting unlawful treatment, such as the denial of your rights and/or retaliation for requesting leave. Make sure you are recording each “incident” and report the situation to the company through an official manner. In most cases, it is best to have your case evaluated by a labor and employment lawyer as soon as the alleged violation occurred since failure to follow the appropriate procedures may lead to a denial of your legal right to recover certain damages like punitive damages.
If you were denied your job back after taking leave, or were denied your right to family medical leave, or suffered retaliation or harassment because you took leave, you may have a case in California for wrongful termination or violation of your right to FMLA leave. If you’ve experienced any of the actions above, take the first step to protecting yourself and stopping this hurtful and illegal behavior. Take advantage of a free initial consultation to discuss your specific case by calling the toll free number (888) 500-8469 or click here to contact us regarding your case.