Filing for leave under the Family & Medical Leave Act (“FMLA”) can be intimidating, especially when you do not know what to expect and how it may affect your family – and your job. Not knowing if you will be eligible for FMLA leave, if you will receive adequate compensation or if you will have a job when you get back from leave are all concerns that weigh heavy on the mind.
To assist in alleviating some of the stress from the process and offer some peace-of-mind, we’ve put together a list of the most frequently asked FMLA questions.
8 Most Frequently Asked FMLA Questions (and Answers)
1. What is the FMLA?
The Family & Medical Leave Act (FMLA) was enacted into law in 1993. The specific description on the Department of Labor website says the Act:
“Entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.”
2. What Does the FMLA Cover?
Coverage areas are one of the most popular FMLA questions. The standard time frame under FMLA is 12 workweeks of leave in a 12-month period. The different types of situations that it covers for an employee include:
- The birth and care of a newborn child within one year of birth
- The placement and care of a child for adoption or foster care within one year of placement
- Caring for a spouse, child, or parent who has a serious health condition
- Time off for a serious health condition that makes the employee unable to perform the essential functions of his or her job
- A qualifying need arising out of the fact that a spouse, son, daughter, or parent is a covered military member on “covered active duty”
Also, there is an extended leave covered in the area of military service called military caregiver leave. It entitles the employee to 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin.
It is also important to note that parental leave under the FMLA after the birth of a child or the adoption or fostering of a child is available for both parents.
3. What Are the Different Types of FMLA Forms I May Need?
As with many types of government programs, you need to file certain FMLA forms dependent upon your situation. The Employer may use different forms but the Department of Labor has issued standard forms. Some of the standard Department of Labor approved forms are listed below. Your responsibility is focused on providing the employer notice of the need for leave in a timely manner. You do not necessarily have to put your request in writing, or use a particular form, or even use magic words specifically identifying the FMLA. You may be required to provide certification from your doctor to support the request (or certification from your family member’s doctor and you have an obligation to do so in a timely manner.
The Department of Labor has also provided standard forms for use by the employer. The employer is focused on asking you for detailed information once they are on notice of your need for leave, providing an answer to your request for leave, and placing you on notice of your obligations to provide them with additional information in a timely manner.
Some of the relevant documents include:
- Health Care Provider Certification Form – Employee – WH-380-E
- Health Care Provider Certification Form – Family Member – WH-380-F
- Notice of Eligibility and Rights & Responsibility Form – WH-381
- Designation Notice Form – WH-382
- Certification of Qualifying Exigency for Military Leave Form – WH-384
- Certification for Serious Injury or Illness of Covered Service Member Form – WH-385
4. Which Types of Employees Qualify for FMLA Eligibility?
Not everyone who works qualifies for leave under the Family & Medical Leave Act. An eligible employee is defined as one that:
- Works for a covered employer
- Has worked for the employer for at least 12 months
- Has a minimum of 1,250 hours of service for the employer during the 12 month period immediately prior to the leave
- Works at a location where the employer has at least 50 employees within 75 miles
The twelve months mentioned above does not have to be consecutive. FMLA applies to both the public and the private sector. Public agencies (local, state, federal), however, do not have a minimum requirement for the number of employees.
5. Is My Employer Required To Pay Me When I Take FMLA Leave?
No. The FMLA only requires unpaid leave. But, the law does permit an employee to elect to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. FMLA law also allows an employer to require an employee to use accrued sick or vacation time. An employee must follow the employer’s normal leave rules in order to substitute paid leave.
6. Can My Employer Move Me To a Different Job When I Return From FMLA Leave?
Once you return from FMLA leave (either after a block of leave or an intermittent leave), FMLA law requires the employer return you to the same job or one that is nearly identical (equivalent). If, for example, they demote you to a job with less responsibility or lower pay, that could be a violation of the law. This protection only applies if you return before your leave runs out. In other words, if you are on leave for more than the allotted 12 week period, you lose the right to return to the same job protections of the Act.
7. Can You Lose Your Job if You Take FMLA Leave?
It is against the law for an employer to deny you the rights you have under the FMLA. If you decide to take leave under the Family & Medical Leave Act, your employer cannot use it as a negative factor in any employment action, including firing you for taking it.
Also, your employer cannot discriminate against or fire you if you complain that they violated your rights under the FMLA. If you feel you were fired for taking FMLA leave or have been subject to pregnancy discrimination in any way, you may want to consider consulting an experienced wrongful termination attorney.
8. What Should I Do if I Feel My Rights Were Violated Under the FMLA?
Employment law attorneys specialize in violations of the Family & Medical Leave Act. So the first thing to know is that you are not on your own.
If you feel your rights have been disregarded or infringed upon, you should first document all instances of retaliation you feel took place —and who was involved. You should also gather all communication pertaining to any adverse employment action related to this, such as emails, letters, disciplinary notices, etc. After you have your information, consider contacting an experienced employee rights attorney who can help evaluate your circumstances.
At Wenzel Fenton Cabassa, P.A., we’re here to protect your rights and help you take action when you’ve been discriminated against, wrongfully terminated, or retaliated against for exercising your right to take medical leave from work under the FMLA. Contact one of our Labor Law Attorneys today to schedule your free consultation.
Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.