There isn’t an easy button to push when you’d like to go out on leave under the Family & Medical Leave Act (FMLA). Don’t misunderstand, it’s not a difficult process but the covered employers do have some leeway as to how they implement it as long as they do so equitably. If you want to file for FMLA leave based on your serious health condition or that of your immediate family member , here’s what you need to know.
Do You Qualify for Leave Under the FMLA?
- You must be employed by a covered employer;
- Have met the employment requirements (worked for your employer for at least 12 months and at least 1250 hours during that time); and
- Have a “serious health condition” (verifiable by an allowed healthcare provider) or an immediate family member with a “serious health condition”
If you meet those requirements, and you want to apply for leave under the FMLA, you should notify your employer as soon as possible, giving appropriate notice. This time period is largely dependent on the illness or injury that causes the employee to need leave. Surgery that is prescheduled can be reported on ahead of time (you are required to give 30 days notice if possible), whereas an employee accident might result in a delay of several days before you’re able to give notice of needed leave.
Even if you don’t use the term “FMLA leave,” the employer must review the FMLA process with you assuming you provide enough information to put the employer on notice that the leave is (potentially) FMLA-qualifying. If you don’t give your employer enough information to recognize it as leave-qualifying, your leave may not be protected.
Most likely, your employer will give you some paperwork to fill out. They will give you written designation that your leave is FMLA-qualifying. At that time, they will advise you if you will need an FMLA fitness-for-duty-certification before returning to work.
Most likely your employer will have an FMLA form and paperwork for you to fill out, assuming you’re able to do so. Part of this paperwork may include a request for a certification from your healthcare provider. This certification will not get into the details of the nature of your illness or injury. Your medical confidentiality is respected. Your employer cannot demand to see your medical files and you do not need to provide your employer with your diagnosis or prognosis. It is imperative that you return the completed medical certification to your employer promptly as a failure to meet the deadline for submission of the certification may result in the legal denial of your leave. Remember- it is your responsibility to return the medical certification not your doctor’s responsibility. You may need to follow up with your doctor’s office to make sure the forms have actually been transmitted and then, contact your employer to confirm receipt.
Benefits Under FMLA
Another thing your employer will cover is how you will pay for existing benefits while you are out on FMLA-qualifying leave. Your employer may also require that you use all paid leave (such as vacation and sick time under its policies) at the same time as your FMLA leave. In other words, you may not be able to use vacation time and then start your allowed 12 weeks of leave under the FMLA . Your employer may require that the paid leave and unpaid FMLA-qualifying leave run at the same time.
FMLA Certification Process
If after receiving your FMLA certification, questions arise, and your underlying condition also qualifies as a disability under the Americans with Disabilities Act, and for other limited reasons, it is within your employer’s prerogative to request a second opinion with a healthcare provider of its choosing. The cost of this second opinion is shouldered by your employer. If your healthcare provider, and the provider your employer selected, disagree on your injury or illness, your employer may request a third opinion. This opinion is binding, again at the employer’s cost, and you are able to help select the healthcare provider in this case.
If your employer is questioning your FMLA leave, or your covered employer has blocked your ability to file for FMLA leave, consult with a Tampa employment attorney at Wenzel Fenton Cabassa, P.A. Your initial consultation is free.