Employee Rights Under The FMLA

By Lisa M. Curry Esq., Deutsch Atkins, P.C.

Most people are aware that the Family Medical Leave Act or "FMLA" is a federal law that provides time off from work. However, many employees are not aware of the many restrictions and requirements of the FMLA, and may not realize that the FMLA is not a fix-all, but in fact seems to fall short of what employees could really use as far as job protections.

This article provides an overview of aspects of the FMLA that our clients most frequently ask about. To review the statute in its entirety, go to http://www.dol.gov/esa/whd/fmla/. This is the official website sponsored by the U.S. Department of Labor (the federal agency charged with enforcing the statute).

Some individual states have a "family leave" statute which provides coverage similar to the FMLA. For purposes of brevity, the only state statute discussed in this article along with the FMLA is the New Jersey Family Leave Act ("NJFLA").

Who is entitled to FMLA coverage?

The FMLA protects only certain employees. First, to be covered, an employee must work for a company that has at least 50 employees working with in a 75-mile radius. Employees of smaller companies are simply not entitled to any time off - unless a state statute so provides. Second, the employee must have worked for the employer for 12 months, and have worked at least 1250 hours in the past 12 months. In other words, many part-time employees and those newly hired are not protected by this statute. A "key employee" (salaried, exempt, and among the top 10% highest paid employees within 75 miles), receives no FMLA protection at all.

Under the NJFLA, the restrictions are the same except that the company must have 50 employees worldwide; the employee must have worked 1000 hours in the past 12 months.

Benefits provided by the FMLA

The FMLA gives qualifying employees time off from work for a "serious health condition" or birth or placement of a child with the employee, but it does not require that the employer pay the employee for this time. However, if an employee has some saved paid time off they want to use (such as vacation time), they should be able to utilize that during FMLA leave, in fact, the employer might require them to do so. In New Jersey, employees taking FMLA leave due to their own illness may also be eligible to receive Short Term Disability payments, which is a benefit mandated by the State of New Jersey.

The maximum time provided for by the FMLA is 12 weeks in a 12-month period (12 weeks in a 24-month period, under the NJFLA). Leave can also be used in small increments - even for an hour or so, in some situations. The 12 weeks do not have to be taken all at once. Be aware, though, that if an employee chooses to use FMLA leave on an intermittent basis, and this is inconvenient for the employer, the employer can temporarily transfer the worker to a different job to accommodate the intermittent leave. This could result in a change in overtime, a change in shift hours, and other inconveniences to the employee.

How to ask for FMLA leave

An employee is not required to ask specifically for "FMLA leave" or "NJFLA leave." The employee only has to give the employer enough information about the reasons for his or her need for time off, so that the employer knows or reasonably should know that the employee may have a situation where he/she requires and is entitled to FMLA leave. In reality, we see many cases where the employer is given reasonable notice, but fails to realize that the employee needs, and is entitled to, time off under the FMLA; and then fires the employee for excessive absenteeism. Therefore, the better the employee understands her rights, and the more explicit she can be in telling her employer when she needs FMLA leave, the more likely she is to ensure that the employer understands - and does not violate - her FMLA rights.

In case of emergency, there are some allowances made for requesting leave after-the-fact. Where the need is foreseeable, however (such as for anticipated birth, adoption or foster placement, or pre-scheduled surgery), the employee is expected to give advance notice. The NJFLA states employees should give 30 days advance notice, or as much notice as possible.

What circumstances are eligible for FMLA leave?

FMLA leave is only allowed for a "serious health condition" of the employee or a family member, or for birth or placement of a child (foster or adoption) with the employee's family. The NJFLA, by contrast, only allows for leave when an employee needs to care for a family member with a serious health condition, or for birth or placement of a child - it does not provide for leave when the employee is the one with the serious health condition.

The "serious health condition" situation is seen most frequently. The statute defines a "serious health condition" fairly narrowly. It is a condition that requires (at the time of the leave, or sometime in the past) one of the following:

• overnight inpatient care, or
• more than 3 days out of work & regular activities + 2 doctor visits, or
• more than 3 days out of work & regular activities + one doctor visit + prescription, or
• continuing supervision by a health care provider, even if active treatment is not being received (example: Alzheimer's, someone in hospice) recurrences of a "serious health condition", including chronic conditions, also can qualify.

Obviously, under that definition, not all illnesses are "serious health conditions." Whether there is a "serious health condition" is ultimately determined based on documentation that the employee must obtain from the patient's physician, using a form which should be provided by the employer. The employee must see to it that the physician completes the form thoroughly and in a timely manner, so the determination can be made properly and promptly.

If the employee is asked to provide documentation from the physician, and does not do so, leave can be denied. If an employee fails to submit the proper certification, but has already taken time off, they can find themselves in the unfortunate position of being away from work without permission. An employee can even be fired for such unauthorized absences. Therefore, it is critical that the employee get the proper certification to the employer on time.

Employee obligations while on FMLA leave

During FMLA leave, an employer can require the employee to check in periodically to provide updates on the patient's health, and/or to confirm the expected return date. If the employee has been told to provide such updates, and fails to do so, he or she could be terminated for this mistake. To prove that they do check in as required, employees should keep records of when they call in and who they talk to, when they send in doctor's notes, and all other communications to the employer.

Employees cannot be terminated from the employer's health insurance plan during FMLA leave. However, they are still required to pay their regular share of premiums. If an employee normally has $100 a month deducted from his paycheck, for example, and he goes on unpaid FMLA leave for 12 weeks, he must make arrangements to pay that $100 per month during his leave. If he fails to pay it within a certain time, he can be terminated from the group insurance plan.

When FMLA Leave ends

The FMLA ensures the employee gets his or her old job, or an equivalent job, when he or she returns at the end of the leave. However, being on FMLA leave is not a shield against layoffs that would otherwise occur. If the employee's job is eliminated during FMLA leave for reasons unrelated to the employee's FMLA absence, the employee has no recourse (unless the job elimination can be shown to be false, and therefore, a pretextual reason). The employer cannot eliminate the job because the employee went on leave. That would be considered retaliation, and is unlawful. Similarly, if an employee is told after asking for, or while using, FMLA leave that the company has decided to terminate him for poor performance or misconduct, this is a valid reason - if it is true. If the employee suspects this is not the real reason, he can challenge the reason as pretextual, and challenge the termination as a violation of his FMLA rights.

One unpleasant surprise that greets some employees at the end of the FMLA leave is the abruptness with which the leave ceases. When FMLA leave ends, unless the employee returns to work immediately, the employer has no duty under the FMLA to keep that employee's job open, with few, and limited, exceptions. If the employee took FMLA leave to care for an ill loved one, there is often no other statute that provides any additional protection when that FMLA leave ends - even if the family member is still sick. And if an employee took FMLA leave to care for an ill family member, and the family member dies, the FMLA leave ends upon death. (While some companies grant bereavement leave, it is not provided under the FMLA.)

If the employee took time off for their own serious health condition which constitutes a disability, there may be protection under another statute that may allow the employee to extend the leave for some period of time until returning to work, but these situations are complicated and very fact-specific, and should be discussed with an attorney before an employee even thinks of relying on such a possibility for job protection.

Finally, note that an employee may not receive crystal-clear warning of what happens if he or she fails to return to work at the completion of FMLA leave. Most significantly, the employer does not have to specifically warn the employee that at the end of 12 weeks of FMLA leave, he or she can be terminated, and the employer does not have to give a "final warning" prior to terminating the employee. The employer only has to tell you that you have up to twelve weeks to return to work; it is up to you to calculate the actual return-to-work date. Some employers will tell you the actual date they expect you back, however and an employee would be well-advised to ask the employer to give them the specific date when FMLA leave will be deemed concluded (unless a further extension is obtained). We do see employees who were terminated for not returning to work at the end of the leave, and such terminations can be difficult to challenge, depending on the circumstances.

Taking action to preserve your rights

An employee can file a lawsuit in court for an FMLA violation, such as denial of an employee's rights to take leave, retaliation against an employee for using FMLA leave, or retaliation for complaining about an employee's rights. Employees can also file a claim with their local district office for the U.S. Department of Labor. For a violation of the state NJFLA, an employee can file a claim with the New Jersey Division of Civil Rights.

Remedies available

The FMLA does not allow recovery for emotional distress damages or punitive damages. The goal of the statute is to provide job restoration; thus, this is the primary type of recovery that the DOL would attempt to achieve of your behalf. Money damages may be available in limited form: employees claiming a violation of the FMLA can only get lost wages plus "liquidated damages" which can be equal to the amount of lost back pay. The New Jersey state statute (NJFLA) appears to offer somewhat greater benefits than the FMLA. In addition to lost wages, the NJFLA permits a claimant to seek up to $10,000 in punitive damages (up to $50,000 for a class action), and the state agency may impose a fine on the employer. If the employer is found to be acting in bad faith, the claimant may receive attorney's fees, as well. The greatest array of possible recovery is available, however, if an employee combines their FMLA or FLA claim with another type of claim (such as disability or handicap discrimination) fitting the fact pattern, that allows for emotional distress and attorney's fees, and bring the claims together in court.

Concluding thoughts

While this article provides only a brief overview, it hopefully has alerted you to some of the intricacies of the FMLA. If you think you may have a claim under the FMLA, consult with a qualified attorney to find out what your rights are and how to best enforce them.