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Do You Qualify? Know Your
Family Medical Leave Act Rights
by Diana M. Savit
The joy of the birth or adoption of a child is often
tempered by concerns about integrating work responsibilities
with greatly increased home obligations. Similarly, when we
or members of the family fall ill, there is often the triple
burden of caring for ourselves or the loved one, dealing
with the emotional drain of illness and care
responsibilities, and trying to hold onto our jobs.
Fortunately, federal law can help. The Family and Medical
Leave Act (FMLA) obligates many employers to allow some time
off to handle parental, personal or family medical issues.
Be aware, however, that this leave is not simply yours for
the asking, nor is it unlimited. To qualify for FMLA leave,
you must work for a covered employer, meet certain
eligibility criteria, and have a qualifying condition.
Who is covered?
The FMLA applies to employees of private businesses and
public agencies that employ 50 or more employees for each
working day during each of 20 or more calendar workweeks in
the current or preceding calendar year. In other words, the
FMLA covers larger employers who can more readily
accommodate lengthy employee absences.
Not every employee who works for a covered employer is
eligible for FMLA leave. To be eligible, the employee must
have worked for that employer for at least 12 months,
rendering a minimum of 1,250 hours of service within that
period.
Finally, the leave must be requested for a qualifying
reason. “Qualifying reasons” include the birth, adoption or
foster care placement of a child, one’s own serious health
condition, or the need to care for an immediate family
member with a serious health condition. “Serious health
condition” means an illness, injury, impairment or condition
that involves inpatient care in a hospital, hospice or
residential medical care facility, or continuing treatment
by a health care provider. In other words, a cold is not by
itself grounds for FMLA leave; we are talking about ongoing
and serious problems.
What leave is available?
Assuming you meet all of the FMLA eligibility criteria, you
are entitled to up to 12 workweeks of leave during any
12-month period. This leave may be taken all at once or
intermittently, depending upon the need. Be aware that you
are not entitled to the full 12 weeks in all cases; the
amount of time allowed is tied to the particular need.
How is FMLA leave requested and obtained?
Every employer should have its own procedures for requesting
FMLA leave. The law does not require you to recite “magic
words” in order to invoke your FMLA entitlements, but you
must provide your employers enough information to show a
situation that might trigger FMLA rights. Employers may
request medical certification of the qualifying conditions,
and can request a second opinion. If there is a conflict,
the issue is resolved by getting a third opinion. The
employer must pay for both the second and third opinions,
and you have a say in choosing the provider of the
tie-breaking opinion.
What other rights does the FMLA provide?
In addition to guaranteeing an appropriate amount of time
off from work (up to 12 weeks) in the event of a qualifying
condition, the FMLA provides job security and peace of mind.
An employee who takes FMLA leave is entitled to be restored
to the position held before the leave began or to an
equivalent position with equivalent employment benefits,
pay, and other terms and conditions of employment. However,
if you are “highly compensated” (meaning within the highest
paid 10 percent of employees within 75 miles of the facility
at which you are employed), job restoration is not
guaranteed because it may be difficult for the employer to
avoid replacing you during your absence. If you are a highly
compensated employee, you are entitled to notice of your
status so you can decide in advance whether you want to take
or continue your FMLA leave, at the risk of being replaced.
It is important to remember that the FMLA guarantees only
unpaid leave, although available paid sick or vacation leave
is typically exhausted first. There is no specific right to
paid FMLA leave. Being on FMLA leave also does not protect
you from the consequences of routine employer decisions. For
example, if while on FMLA leave your employer eliminates
your department, your FMLA leave status normally will not
insulate you from this.
What if you are denied your FMLA rights?
The United States Department of Labor enforces the FMLA, and
you can make a complaint to that department if you think
your FMLA rights have been violated. You can also bring your
own lawsuit to enforce your rights and to recover
compensation lost as a result of the FMLA violation, other
monetary losses the violation may have caused (such as
hiring a caregiver for the sick or injured person), interest
on the sums paid, and legal fees incurred if you win. If the
court finds that the employer deliberately violated the FMLA,
it may order the employer to pay a penalty equal to the
amount of the actual loss. The court can also award
non-monetary relief, if appropriate, including job
restoration or promotion.
Everyone’s situation is different. Speak first with the
appropriate office at your place of employment if you think
you are entitled to FMLA leave or if you believe you have
not been properly returned to work following your use of
FMLA leave. If you are not satisfied with the outcome,
consult an attorney or contact the U.S. Department of Labor.
Washington Independent Services for Educational Resources
(WISER) members work to improve educational services and
promote child advocacy by providing resources to children
and parents. Please visit
www.wiserdc.com or call 301-816-0432 to find a
specialist to work with your child and family. Diana Savit,
immediate past president of WISER, is an attorney licensed
in Maryland and the District of Columbia, who practices with
Savit & Szymkowicz, LLP in Bethesda, Maryland. Savit &
Szymkowicz, LLP is a general practice law firm whose areas
of specialization include employment, family, business,
estate/probate, and special education law. For more
information call (301) 951-9191, email
mail@bowsslaw.com ,
or visit their website at
www.bowsslaw.com .
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