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What You Need to Know About the Family and Medical Leave Act of 1993 (FMLA) and Were Afraid to Ask

Part 2

The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid leave in a 12-month period. The leave can be taken for the birth, adoption, or foster placement of a child, the care of a family member with a serious health condition, or the employee’s own health condition.

  • Who decides whether the requested leave is covered by FMLA?
    • The employer has the responsibility to determine whether the requested leave qualifies under FMLA. The employee must give enough information to the employer to make the determination whether the leave qualifies. The employee does not have to specify that the leave request is for FMLA as long as the employer was given sufficient facts to establish that the leave is covered under FMLA.
  • What type of notice is required to request FMLA leave?
    • If the need for leave is foreseeable, the employee must provide 30 days’ notice. If there is no excuse for failure to provide 30 days’ advance notice, the employer can delay the leave for up to 30 days.
    • If 30 days' advance notice is not possible, such as in emergency medical situations, the employer should be notified as soon as practicable.

Note: The notice provision may not apply if modified by state law or by a collective bargaining agreement. You should check with an attorney or your union representative if notice is an issue in your case.

  • What is required to return to work after FMLA leave?
    • Many employers have a policy requiring a medical certification for the employee to return to work if the leave was for the employee’s own health condition.
    • The employer must inform the employee in advance if a medical certification is required to return to work, and the certification must comply with the provisions of the Americans with Disabilities Act (ADA) limiting the type of information that is disclosed and the guarantee of confidentiality.
  • What happens to an employee’s health benefits during FMLA leave?
    • While FMLA leave is generally unpaid (unless one of the conditions discussed in Part I applies), the employee’s health benefits under the employer’s group plan must continue while the employee is on FMLA leave.

Both the employee and employer must pay their respective shares of the health care premium during FMLA leave. Note: The employer may terminate the employee’s health care benefits once notified that the employee does not intend to return to work.

Other benefits, such as life insurance, are not required to be continued during FMLA leave unless the employer typically provides them under non-FMLA unpaid leave or unless required under state law or a collective bargaining agreement.

  • What happens if the employee does not return to work?
    • The employer may be able to recover health premiums paid for group health coverage for the employee during FMLA leave. This applies ONLY if the employee is not returning to work because of something other than a serious health condition or a situation that is outside of the employee’s control. So, for example, accepting another job would be a situation where the employer could recover the health premiums paid.
  • How will FMLA leave affect seniority?
    • For vesting in retirement plans, such as pensions or 401(K)’s, seniority continues to accrue during FMLA leave. For other purposes, such as eligibility for promotion or vacation time, the FMLA does not require accrual of seniority, although it may be required under state law or a collective bargaining agreement.

However, if paid leave is substituted for unpaid FMLA leave, seniority accrues for ALL purposes during the paid leave.

  • What happens to employee benefits after returning to work from FMLA leave?
    • ALL benefits earned prior to the leave are restored.
  • What job does an employee return to after FMLA leave?
    The employee is entitled to return to the same position held prior to the leave or an “equivalent position.” This means that the position must:
    • Provide equivalent pay and benefits;
    • Have substantially similar duties, conditions, responsibilities, privileges, and status;
    • Be at the same or geographically proximate worksite with the same or equivalent schedule, and with the same opportunity for bonuses and profit sharing.

As always, if you have any concerns about FMLA leave or are having difficulties obtaining FMLA leave or problems with your employer for having taken FMLA leave, you should seek legal assistance. FMLA leave is protected by Federal law.

Contact Us for Legal Assistance

When it comes to looking for legal help with any type of illegal employment discrimination, Weiler Law PLLC is here to help. Our team of attorneys understands the complexities involved in these cases and is dedicated to providing the best possible representation. We can work closely with you throughout the process to ensure that your rights are protected.

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