Family Medical Leave Act

The Family Medical Leave Act, or FMLA, is a federal law which protects many California workers.

If you or a close family member are sick, the FMLA may guarantee you time off from work to care for yourself or others. Keep reading to learn more about your FMLA rights, or call an employment attorney at Spencer Young Law today for a free consultation.

Who is protected by the FMLA?

You are protected if all of these are true:

• Your employer is subject to the FMLA, and
• You have worked there for at least 12 months, and
• You worked at least 1,250 hours in the previous 12 months.

Which Employers are Subject to the FMLA?

• All public employers,
• All private elementary and secondary schools, and
• All other private employers that employ at least 50 people within a 75 mile radius of your worksite.

Example 1: Todd has worked for the County Health Department full time for 2 years. His employer is subject to the FMLA as a public entity, regardless of how many employees it has. Todd has worked long enough and enough hours to enjoy FMLA protections.

Example 2: Leslie works 20 hours a week at a retail store in San Francisco. The store has 15 employees. It is owned by a corporation which owns several other stores in the Bay Area, employing more than 100 people. The corporation is subject to the FMLA because it employs enough people in a 75 mile radius. However, Leslie most likely has not worked 1,250 hours in the previous 12 months. While some of her coworkers may enjoy FMLA protections, Leslie currently does not.

How Much Time Off am I Guaranteed?

FMLA provides up to 12 weeks of leave. It can be taken all at once, or intermittently.

When May I Use FMLA Leave?

You may use FMLA leave if:

• You have a serious health condition,
• You are caring for a parent, spouse, or child with a serious health condition, or
• For childbirth or child adoption.

What Makes a Health Condition “Serious”?

An injury or illness is serious if it requires inpatient treatment, multiple outpatient treatments over time, or incapacity for more than three days. A common cold, if brief, would likely not qualify.

Example 1: Kalia injured her shoulder and requires physical therapy once a week over the course of 6 months. She can use FMLA time for her ongoing therapy.

Example 2: Jodi’s father is in the hospital for three weeks following a stroke. Then he is released home, but requires frequent follow-up visits to his doctor. Jodi may use FMLA time to take care of her father both during and after his hospitalization, since he received inpatient treatment, then required ongoing outpatient treatment.

What Job Protections Apply During My FMLA Leave?

During your leave, your employer must continue to provide any group health benefits you were receiving prior to taking leave. Your employer must cover the same premium payments or other costs that it covered prior to your leave. However, you may be charged for any costs that were your responsibility prior to your leave.

Example: Jaime receives group health coverage through his employer for himself, his spouse, and their children. The employer pays 80% of their monthly premiums, and the remaining 20% is deducted from Jaime’s paycheck. Jaime takes FMLA leave for 2 months. During this time, the employer must continue to cover 80% of the premiums for Jaime, his spouse, and their children. The employer may require that Jaime pay the remaining 20% as such costs are incurred, or may make other arrangements to recover this amount.

What Job Protections Apply Upon My Return From FMLA Leave?

Your employer must restore the job you had prior to taking leave. This means:

• Your pay and benefits must stay the same,
• The hours and location of your work must not change,
• Your title and responsibilities must remain the same,
• You do not lose seniority or other benefits you accrued prior to starting
• leave,
• Upon return, you receive any regularly-scheduled raises that took effect
• during your leave.

Your employer must also not retaliate against you for having exercised your rights under FMLA.

Example 1: Nadine returns from FMLA leave. Everything about her job is as she left it, except that her desk chair was replaced with a newer one. Her employer has most likely complied with FMLA, because, other than the chair, her job is nearly identical to how it was before.

Example 2: Mario is a unit manager in the burn unit of a hospital. He uses 9 weeks of FMLA leave to adopt a child. Upon his return, he is told that his position was filled, but there is an opening for a unit manager position in the urgent care unit. His pay, benefits, and hours remain the same, but he is working with a new team of people who provide different medical services. The hospital has failed to comply with FMLA, because Mario’s job is not nearly identical to how it was before.

Must My Employer Pay Me During FMLA Leave?

No. FMLA is not a form of wage replacement. It is meant to provide job security when your employer might otherwise find your medical or family needs inconvenient. However, your employer must allow you to use accrued paid time off in a manner consistent with employees who take other types of leave.

Example: Krystal and her coworkers accrue 5 days of paid sick leave and 10 days of paid vacation per year. The company has a policy capping actual use of paid vacation to 8 days within a 3-month period. Krystal begins a 3-month FMLA leave with 25 sick days and 50 days of vacation available. Consistent with its policy, the employer allows Krystal to use all 25 sick days, but only 8 days of vacation. The employer has most likely complied with FMLA.

Can My Employer Say No if I Request to Take FMLA Leave?

Generally, no. Your employer must provide paperwork for you to have completed by a health care provider. If the provider certifies a qualifying serious illness, your employer does not have the discretion to reject your request. Your employer is forbidden from pressuring you or trying to persuade you not to use FMLA time that you are qualified to use.

Example: Jefferson tells his supervisor that his daughter will undergo surgery and then require around-the-clock care for 4 weeks while she recovers. The supervisor tells Jefferson that it will be difficult for the company to cover his responsibilities for 4 weeks, so he should make every effort to find someone else to take care of his daughter. Otherwise, the supervisor tells him that they will have to train and promote Jefferson’s subordinate, and Jefferson will need to take his subordinate’s job when he returns. The supervisor has violated FMLA by trying to coerce Jefferson not to exercise his FMLA rights.

If you think your FMLA rights were violated, call Spencer Young Law today for a free consultation with an employment attorney.