Family Medical Leave Act
It is sadly all too common for an employee to need time off in order to deal with a medical condition, whether that be your own or that of a member of your household that you need to take care of. The Family and Medical Leave Act protects your ability to do so provided that you work for a covered employer under the FMLA and have worked for that employer for the past year. In order to count as a covered employer, companies must have 50 or more employees within a 75-mile radius of the worksite you are employed at. Under the Act, you are entitled to take up to 12 weeks of unpaid medical leave across a 12-month period in order to recover from an injury or illness, care for a loved one, or keep up with regular medical appointments. These 12 weeks can be taken all at once or cumulatively in many small intervals. While this leave is not paid, employees are allowed to take paid leave or vacation time at the same time as FMLA leave; many employers encourage this and some even require it. Texas law does not provide for comprehensive family and medical leave, but employers with 15 or more employees who allow leave to employees to care for sick children must also provide that leave to foster parents.When and How Can You Take FMLA Leave?
FMLA leave is not limited to injuries or illness suffered by an employee. Workers are also allowed to take leave in order to take care of a spouse, child, or parent who is suffering a serious medical condition. In addition to illness or injury, employees may also take FMLA leave to care for a newborn or newly adopted child, or to fulfill military duties such as deployment or training. Taking FMLA leave does not affect your workplace health insurance coverage.
If a family member is injured on active military duty, you are allowed to take up to 26 weeks of FMLA leave in a 12-month period in order to care for them.
Employers may request that the employee provide certification when requesting leave, which may include information on the medical condition and its estimated duration, proof that the employee cannot perform the essential functions of their job, or a statement about the care necessary when caring for a family member. Once the initial certification is provided, the employer can generally only request a recertification once every thirty days, or even longer if the accepted initial duration of the condition exceeds that time period. In all cases, employers may request recertification every six months. Certification and recertification for FMLA leave can be very complicated, and our Austin medical leave lawyers can help you navigate the intricate rules surrounding it.
In all cases, you are required to give your employer reasonable notice that you will need to take FMLA leave. Whether or not the notice that you give is reasonable is analyzed on a case-by-case basis; an unexpected but severe injury (e.g., a car accident) will require less notice than a planned adoption of a child. In a typical scenario, 30 days of leave is generally regarded as reasonable.The FMLA and Your Rights as a Worker
Employees returning from FMLA leave are granted certain rights under the Act. They must receive the same pay and benefits that they were receiving before taking leave, have the same job duties, and be reinstated on the same shift or schedule at the same worksite. Employers who deny any of these things to workers who have taken FMLA leave have violated their employees' rights under the law. If you return from family medical leave and find that your employer has cut your pay or benefits, or reassigned you to a different job, you may be able to bring a claim against them.
Sadly, it is also not uncommon for employers to identify workers who they believe will want to take FMLA leave in the future and terminate them before they can reach the required one-year mark of working at the company. This behavior is illegal—employers cannot preemptively fire employees before they qualify for FMLA leave in order to prevent them from taking such leave.
Since it is common for employees to face resistance or retaliation when applying for FMLA leave, it is helpful to have an attorney on your side ahead of starting the process. At Wiley Walsh, our Austin medical leave lawyers are well-versed in the FMLA process and can help protect you against retaliation from your employer. If you have already faced negative treatment from your employer due to an FMLA leave request, or would like to protect yourself against such treatment, you can contact us by filling out our intake form or calling our office at (512) 271-5527.