Family Medical Leave Act

Rob Wiley: My name is Rob Wiley and today I'm going to be speaking with Austin employment lawyer Colin Walsh about the Family Medical Leave Act. So Colin, someone has a serious medical condition and they need to take time off work to deal with it, be it a car crash or be it a cancer treatment. What kind of rights does an employee have to take leave from work because of a serious medical condition?

Colin Walsh: Well, first an employee does have a right to take leave for a serious medical condition. That's protected by the Family and Medical Leave Act. And, that act provides up to 12 weeks of unpaid leave to deal with a serious medical condition.

Rob Wiley: Now as I understand it, not all workplaces qualify and not all employees qualify for that either. What are the threshold requirements to be able to qualify for Family Medical Leave?

Colin Walsh: Well, threshold requirement for an employer would be 50 employees within 75 miles. So, it's not going to protect smaller employers. The requirements for an employee would be that employee has to have worked there for a year and must have 1,250 hours of work in that job before they qualify.

Rob Wiley: And so when we talk about 50 employees within 75 miles, that's of the work site of where they were physically working, is that correct?

Colin Walsh: Yes, that's correct.

Rob Wiley: Okay, and so, you said that it was unpaid leave. Does that prohibit an employee from also being able to use vacation time or, or some sort of paid leave that they're entitled to as well as FMLA leave?

Colin Walsh: No, it does not prohibit an employee from using paid leave at the same time as FMLA leave. In fact, I would say that most employers if they don't require it, encourage it.

Rob Wiley: Now in terms of getting these 12 weeks off, um, how often do you get to take FMLA leave?

Colin Walsh: Every 12 months.

Rob Wiley: So, every, every year you get this additional, I, I guess right to 12 weeks of, of FMLA leave if you qualify under the law. One of the things we talked about was a serious medical condition but that doesn't just have to be for the employee, does it? Who could that, who can an, an employee take leave to take care of?

Colin Walsh: You're right. The FMLA does not protect just an employee, but the employee's spouse, child, or parent, if they have a serious medical condition.

Rob Wiley: So, if your child is sick and you need to stay home to take care of that child that's exactly the kind of leave that would be covered, is that correct?

Colin Walsh: Yes, absolutely.

Rob Wiley: Obviously sometimes people want to take a big block of time take off work, recover for some sort of, a very traumatic-type injury. But we also see some people that need an hour here, an hour there, to deal with with a chronic condition or something like that. Would the FMLA protect people who take, need to take that leave over time?

Colin Walsh: Yes, the FMLA would protect those people. They would call it intermittent FMLA leave and that allows an employee to use little blocks of those 12 weeks over a long period of time.

Rob Wiley: And, I guess before taking FMLA leave you probably need to give your employer some sort of notice. What does the law have to say about that notice requirement?

Colin Walsh: So, an employee in an ideal world and best case scenario would give the employer at least 30 days of notice. However, emergencies do happen and so, what the law says is that as long as you give the employer as much notice as possible, you're going to be protected by FMLA leave.

Rob Wiley: Now, I think that the FMLA has, a couple of protections in there. One is, of course, while you're off work, can they interfere with this time that you have off? Can they call you up, you know, tell you to come back in for a day, things like that?

Colin Walsh: No, they cannot. They cannot interfere with your FMLA leave.

Rob Wiley: And so at the end of your FMLA leave you want to return to work. Does the employer have to return you to work even if they found someone else to fill in for your position while you're gone, a new employee?

Colin Walsh: Yes. The employer is going to have to return you to your job or a job that is essentially the same as the one you left. That's the whole point of FMLA leave.

Rob Wiley: Right, I've actually heard it described as it's not so much the right to take the leave, it's the right to come back afterwards to the same or equivalent position and certainly also to be making the same amount of money. Now, something that I've seen some employers do that's very, very sneaky is they might have an employee who has worked for them for some period of time, maybe 11 months and so they don't qualify for FMLA leave yet and they know that the employee is going to want to take FMLA leave once they hit the 1 year mark. Can an employer preemptively terminate somebody to prevent them from qualifying for FMLA leave?

Colin Walsh: No, that would be a violation of the FMLA to preemptively fire somebody for wanting to take FMLA leave.

Rob Wiley: And I think the FMLA is one of those things where it is particularly helpful to have an employment lawyer represent you because you're going to be going to the employer and you're going to be asking for leave which always raises the specter of retaliation. Um, ideally HR would do everything they're supposed to do and that they should give you leave and welcome you back with open arms, but we all know that that does not always happen in the workplace, so getting a lawyer involved ahead of time as opposed to after you're starting to experience retaliation that can be very helpful.

Colin Walsh: I would agree. I would say getting an employment lawyer involved as early as possible in the process is going to be very helpful.

Rob Wiley: And this is something that's been surprising to me too. I, you know, in terms of the violations that we see we probably see more violations involving age discrimination, people over 40, pregnancy discrimination and FMLA leave. That is, that is an area in which once employees signal a need to take leave or want to take leave everything changes and they find themselves pushed out of a job, fired or the terms and conditions changed in a way that it is no longer the job that they enjoyed doing.

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