FMLA violations are probably more common than you think. Employees want to believe when they are talking to the human resources department that the employer is adhering to the law but many times the Human Resources Department representative simply don’t know the details of the Family & Medical Leave Act and whether it applies to them and to you.
First, the Family & Medical Leave Act doesn’t cover everyone. This is where the confusion starts. Both employer and employee must meet minimums for it to apply. The employer must employ at least 50 employees or more for 20 weeks out of the year within 75 miles of your employment site. (However, it’s important to know that all government entities, including public schools, regardless of size, are covered by the FMLA.)
The employee must have worked at least 1,250 hours over the past twelve months and worked for the company at least 12 months. (Those months needn’t be consecutive.) Employees can not arbitrarily take FMLA leave to care for anyone they wish for any reason. FMLA stipulates a “serious health condition” of you or an immediate family member. This covers spouse, child, and parent. It does not cover pet, girlfriend/boyfriend, in-law, or other non-immediate family.
The Most Common FMLA Violations
Here are some of the most common FMLA violations we see.
All or Nothing
Some HR reps are under the impression that FMLA must be taken as full-time leave. However, if medically required, leave may be taken on an intermittent schedule. FMLA leave is not all or nothing. If medically supported, you must be allowed to take leave on a part-time, or intermittent basis, and when you are at work, you will be paid when you are at work. Your part-time leave will be unpaid. This helps many employees stretch their leave while cushioning the financial hardship of making ends meet while working through a serious health condition situation. Part-time pay is better than no pay.
Not Understanding “Serious Health Condition”
The requirement that you must be taking time off for a “serious health condition” to trigger FMLA coverage does not mean that you must have a terminal illness, although a terminal illness would qualify as a serious health condition. The FMLA is triggered by maternity care, adoption placement, surgeries that render you or your immediate family member incapacitated for a period of longer than three days, if you require an overnight stay in the hospital, ongoing treatment for a chronic conditions, and other reasons. Some companies will tell you a shoulder operation, for instance, will not qualify for FMLA leave. That is not necessarily true and their failure to grant time off under the FMLA may be a FMLA violation. If you will be incapacitated in some way if the surgery is not done, or if you are incapacitated currently because of the injury (or illness), you may apply for FMLA.
The most common misconception of not understanding “serious health condition” is when a minor illness (or injury) takes a major turn, and a complication arises. While the initial illness (or injury) may not have qualified, the complication often does. Don’t let your employer tell you otherwise.
The Employee Didn’t Ask to Go Out on FMLA Leave
You don’t have to use any magic words and phrases to give notice of a need for leave and trigger the protections of the FMLA. If while you are speaking to your human resources representative or manager, you mention needing to be off to take care of your own, or an immediate family member’s medical needs, as long as you have provided sufficient information to put them on notice that this may be a covered leave, it is incumbent on the employer to recognize what you are asking for- and the possibility that you are eligible for FMLA leave- even if you don’t ask them directly for FMLA forms.
Firing You Upon Your Return
The FMLA was designed to protect an employee’s right to be restored to an equivalent position after a covered leave. It is a job protection statute. While you’re not guaranteed your old job back (it can be held but it’s not guaranteed), you are guaranteed a similar one with similar pay, hours, and responsibilities.
Confusing Leave with Working from Home
Your employer should never ask you to perform work while you are on full-time leave. Some employers are so wary of this they hesitate to even communicate with employees on leave. This is not beneficial either. Communication and updates on your return are allowed and encouraged. Asking you to submit reports, and to complete other work, is an FMLA violation.
If you are on FMLA leave and one of these things has happened to you, your employer may be violating the FMLA. Consult with a Tampa Family & Medical Leave Act attorney today. At Wenzel Fenton Cabassa, P.A. the initial consultation is free. Call us at 813-365-3417.