By: Leizer Goldsmith
You may know that the Family and Medical Leave Act (FMLA) states that you may be able to take up to twelve weeks off from work to care for a sick relative. After all, the law was signed into law by President Clinton amid much fanfare in 1993, and much of the publicity at that time referred to that fact. As an employee, however, you need to understand the answers to numerous other questions about the law.
First of all, you can pretty much forget about receiving the protection of the law if you work for a company with fewer than fifty or more employees-that's the minimum number required by Congress. You can also forget it if you just started the job when you need the leave, or if you only work a few hours per week; the FMLA requires that you have worked for the employer at least 1,250 hours during the preceding twelve months.
So, assuming you meet those criteria, you should next be asking whether the reason for your absence is covered. Coverage is actually fairly broad. Your own “serious” medical condition is just as good a reason for taking FMLA leave as that of your child or spouse, if you are unable to perform the “essential functions” of your position. It is important to note that the FMLA does not require that you be “disabled” in order to qualify for protection, such as is the case under the Americans With Disabilities Act. Therefore, the FMLA is the law of choice for employees who are unable to work because of a temporary, but serious medical problem.
What can you do if your employer resists giving you the leave you need? If possible, you can try to educate the employer about its responsibilities under the law. In practice, the employer frequently fires the employee for not coming to work when he or she should have been credited with FMLA leave for the missed time. If this happens to you, you may sue the employer for reinstatement and to recover lost wages and, possibly an additional amount equal to your lost wages. The employer must also pay your attorneys' fees if you win. Unlike age and disability discrimination claims under federal law, the FMLA does not require that you file a charge with an administrative agency such as the EEOC as a prerequisite to filing suit.
One major question is how to count the twelve weeks of leave. The Department of Labor issued regulations after passage of the FMLA, which required employers to notify employees when their leave was permitted by company policy and was also being attributed to FMLA leave. Under these regulations, employers in several cases have been compelled to reinstate employees who had been fired after they ran out of leave. Courts stated in those cases that the employers were obligated to give their employees notice that their FMLA leave was being used simultaneous to the use of their leave under company policies, and since they failed to do so, the employees were improperly terminated. In several recent cases, however, courts have overruled the Department of Labor regulations, and concluded that employers need not provide the notice if the employee was being given the twelve weeks of leave required by the FMLA, whether paid or unpaid.
The FMLA is still not well understood by either employers or employees. If you have been denied leave that you needed for medical reasons, and especially if you have been fired for staying out of work when you had no choice, or if you are expecting to need extended leave in the near future and are concerned about obtaining your employer's cooperation from the beginning, you should investigate your rights under this important law.