In the past, employers had almost free rein to terminate employees for extended leaves of absence. However, this all changed with the enactment of the federal Family and Medical Leave Act (FMLA) (as well as California’s leave laws). With the advent of this law, employees are protected by law against being discriminated against for exercising their rights to take unpaid leave under the act. However, since there are some requirements that the employee must meet in order to receive protection under FMLA, it is important for everyone to be familiar with their basic rights and obligations under the act.
In California, you are covered under the FMLA if you meet three requirements (however, the rules for airline flight attendants are different):
• You work for an employer with at least 50 employees within a 75-mile radius
• You have worked for the company for at least a year; and
• You worked at least 1,250 hours the prior year
If these requirements are not met, you are not eligible for FMLA protections. If you are eligible, you are entitled to take 12 weeks of unpaid leave per year. This renews every year, as long as you meet the above criteria.
Covered reasons for leaving
Under the FMLA, not just any type of leave is covered. In general, you may take leave to:
• Care for and bond with a new child (natural birth, foster care or adoption)
• Recover from a “serious health condition”
• Care for a family member suffering from a “serious health condition”
• Care for family members injured while performing their duties during military service
What is a “serious health condition” under the act? As the definition provided by the statutes is rather vague, this question has been the subject of numerous lawsuits. However, the Department of Labor has stated that qualifying health conditions include:
• Conditions requiring an overnight stay in a hospital or medical facility
• Chronic conditions that cause periods of incapacitation requiring treatment at least twice a year
• Pregnancy, which includes prenatal appointments, doctor prescribed bed rest and incapacity because of morning sickness
• Conditions that cause incapacitation for more than three consecutive days and require ongoing treatment
It is important to note that employers may request medical certification of your condition from a healthcare provider before approving your leave.
In order to take FMLA leave, you must give your employer 30 days advance notice of your intention to do so in most cases. However, if circumstances prevent you from giving 30 days notice (i.e. unexpected need for emergency medical care), you must provide notice as early as you can. It is not necessary for you to inform your employer of your specific medical conditions (or that of your family members), but you must provide enough information to indicate that your leave is covered by FMLA.
While on leave, you are protected against termination of your employment, as long as you return to work before you have exhausted your 12 weeks. As long as you return before your leave expires, you must be reinstated to the same job (or one substantially similar and equal to it). Additionally, your employer may not use the fact that you took FMLA leave as a reason to discriminate against you in hiring or promotions or as a pretext for disciplinary action.
Additionally, you are entitled to continue your health insurance through your employer at the same rate you normally pay while working. Although FMLA leave is unpaid, you may also use any accrued paid leave you have to ensure you get paid while you are out. Sometimes, employers may require you to use all your accrued paid leave before taking any FMLA leave.
If your rights are violated, get legal help
Although many employers respect the rights of their employees to take leave under FMLA, some do not. Fortunately, in such cases, you may seek monetary damages as well as equitable relief (i.e. reinstatement of your job) under the law. If you have been terminated or discriminated against because you took leave, it is important to protect your rights by seeking legal representation. The experienced employment law attorneys at The Armstrong Law Firm can ensure you receive fair and adequate compensation for the illegal conduct of your employers.