Knowing Your Rights Under the Family and Medical Leave Act (FMLA)

As a federal labor law, the FMLA requires American employers of a certain size to give workers unpaid time off to address serious family health issues, as well as a devastating event such as the loss of a loved one. Qualifying for unpaid leave can involve adoption, pregnancy, or dealing with a terminal illness. One of the most important clauses written into the FMLA requires the continuation of insurance coverage, as well as the guarantee of employment security while the worker takes unpaid time off from work.

The paramount objective of the FMLA is to provide workers with the time and financial resources to handle family emergencies. The Wage and Hour Division at the United States Department of Labor (DOL) manages the FMLA program.

Before you discover whether you qualify under the FMLA family member definition, you first have to determine if you work for an employer that must follow the guidelines written into the groundbreaking federal employment law. Private employers that have at least 50 employees living within 75 miles of the workplace must comply with the FMLA. If you work for an employer that employs fewer than 50 workers, you might be eligible for coverage under your state’s family and medical leave law. Some states have not enacted family and medical leave laws. To determine whether you qualify under state family and medical leave law, speak with one of the experienced employment law attorneys at Morgan & Morgan.

The second criterion involves calculating work hours. Your employer might be covered under the FMLA, but you fail to qualify for the program because you have not worked for your employer for a minimum of 12 months. You do not have to compile 12 consecutive months of work. However, if you have a gap in employment that is more than seven years, you cannot use your years of employment before the seven-year gap to qualify for the FMLA. You also have to accumulate at least 1,250 hours on the job during the 12 months before you take a break from work. For 52 weeks, 1,250 hours break down to about 24 work hours per week.

You can take unpaid leave because of a serious health condition that adversely affects you, your spouse, or a parent. The question is how does the FMLA define “serious health condition.”

• Pregnancy
• Requires an overnight stay at a hospital or another type of medical facility
• Causes incapacitation for three or more consecutive days and requires ongoing medical treatment and/or rehabilitation
• Chronic illness that causes occasional episodes of incapacitation and requires treatment at a healthcare facility at least two times a year

Growing Your Family

You have the right to take unpaid leave for the birth of a child to bond with the newborn. The FMLA also allows workers to miss time for adoption or to address foster care responsibilities. However, you must take unpaid leave within one year of a child’s birth or placement.

Military Family Leave

You have the right to take unpaid leave for certain types of military deployments. In addition to serving in the military, the FMLA grants 26 weeks of unpaid leave during a 12-month period for an eligible military service member to recover from a serious illness or injury.

You can fulfill all the legal requirements and still be denied eligibility for FMLA benefits. You must also provide your employer with sufficient notice. If you know in advance that you need unpaid leave (pregnancy), you must give your employer at least 30 days of notice. If you suffer from injuries caused by an accident, federal law requires you to give your employer notice as soon as you can. Your employer should have established a procedure that explains how to provide notice for unpaid leave. Review your employee manual or speak with a human resources manager to learn more about the procedure for giving FMLA notice.

Most employers require workers to submit a medical certification to validate a request for unpaid leave. In most cases, you have just 15 days to submit the documents that fulfill the criteria for submitting a medical certification.

• Contact information of the health care provider
• Prognosis of the health condition
• The date when the symptoms of the illness or injury developed
• Description of the symptoms
• Results of diagnostic tests
• Description of the treatments
• Whether you cannot work or a family member needs medical care
• Whether your leave is continuous or intermittent

If your employer discovers required information missing from your medical certification, it must provide you a notification in writing that explains the type of additional information you must submit. You have seven days after receiving the written notification from your employer to submit the missing information. Your employer also has the right to question the legitimacy of your medical certification, which allows your employer to request a second, even a third opinion about your medical condition.

Your employer can ask for an updated medical certification if your medical condition has changed significantly or if your unpaid leave extends longer than originally anticipated.

According to FMLA regulations, the FMLA family member definition includes a worker’s spouse, son, daughter, or parent. A spouse is a wife or husband that includes the spousal relationships defined by same-sex marriages. An employee’s son or daughter can be biological, adopted, or a foster child. The son or daughter must be younger than 18 years. A son or daughter older than 18 years might qualify a worker for unpaid leave if the son or daughter is not capable of self-care. The FMLA family member for a definition of a parent includes biological or adoptive, as well as a stepmother or stepfather.

Family members that are not covered by the FMLA include in-laws, siblings, grandparents, and other extended family members.

Some states provide more comprehensive coverage for unpaid leave and have established a much broader FMLA family member definition. States that exceed the coverage provided by the FMLA include siblings, grandparents, and domestic partners within the FMLA family member definition. If the FMLA does not cover one of your family members, contact one of the employment lawyers at Morgan & Morgan to determine whether the state where you live has enacted legislation that expands the FMLA family member definition.

Because the FMLA does not address financial issues, it is critically important to ensure that your financial house is in order in case a catastrophic event negatively impacts you and your family.

Make sure you have a will in place that specifies which family member receives certain types of assets. Every state has passed a version of an inheritance law, which means you want to comply with the inheritance guidelines established by the state where you live. Review every financial document to confirm you have identified the right beneficiaries to all your assets. Keep the information up to date, especially when it comes to naming beneficiaries. 

Before you apply for unpaid leave, read the section in your employee manual that defines immediate family members. Some employers are more generous with an FMLA family member definition.

Not every employer should contact an FMLA lawyer. However, four factors should motivate you to reach out for legal counsel.

Poster Violation

Every employer that follows the guidelines created by the FMLA must place posters in areas of a workplace that are easily accessed by workers. Each poster violation triggers a $110 fine from the United States Department of Labor.

Denied Employee Benefits

If you take unpaid leave under the guidelines stipulated by the FMLA, you have the right to continue to use your employer’s group health insurance benefits. If your employer cancels your benefits while you are on unpaid leave, you have the right to file a lawsuit that seeks monetary damages.

Failure to Reinstate Job

The FMLA requires employers to reinstate workers to their old jobs after they return after an unpaid leave of absence. You have the right to sue for lost wages if your employer denies you the right to return to your former position with the company.

Discrimination/Retaliation

Your employer cannot discriminate and/or retaliate against you for requesting unpaid leave as permitted by the FMLA. Working with an employment attorney can help you determine how much in monetary damages you deserve for the pain and suffering caused by acts of discrimination and/or retaliation.

Experience matters when it comes to representing clients that are involved in an FMLA dispute. The employment lawyers at Morgan & Morgan have represented many clients across the country that should have enjoyed the benefits of unpaid leave, but they were instead denied by their employer.

When you meet with one of our accomplished labor attorneys, you will receive a thorough case evaluation that includes determining whether you qualify at the state or federal level for the FMLA family member definition. If your case reaches a courtroom, having a Morgan & Morgan attorney by your side gives you a much better chance of winning your case.

Schedule a free case evaluation today with one of the employment lawyers at Morgan & Morgan.