If you are pregnant, adopting or fostering a child, taking care of a sick child or aging parent, or have a serious health condition, you might be eligible for protected leave from work under the Family and Medical Leave Act (FMLA). Here’s what you need to know about the FMLA, including who is eligible, what it allows for, and when to call a lawyer for a potential FMLA claim.

What is the Family and Medical Leave Act (FMLA) and who is eligible for it?

The FMLA allows eligible employees who work for employers who are covered under the FMLA to take unpaid leave and have their job protected while out on leave.

FMLA can be used for situations such as the birth of a child, pregnancy care, the placement of an adopted or foster child, care for a spouse, child, or parent with a serious health condition, or when the employee has a health condition that prevents them from performing their job more than three consecutive days, including mental health conditions. In these situations, FMLA leave can be used for up to 12 weeks each year, either continuously or intermittently.

If you are a covered military member or someone you need to care for is a covered military member, 26 work weeks of leave during a one-year period is allowed, continuously or intermittently.

The FMLA applies to certain types of businesses: agencies, state and federal employers, schools, and more in the public sector. In the private sector, it applies to employees who worked at least 1,250 hours in the past year and are employed at a work site that has 50 or more employees within a 75-mile radius.

What is a serious health condition under the FMLA?

The FMLA defines a serious health condition broadly and can refer to physical or mental health conditions or illnesses. In-patient care could qualify, such as a hospital stay or a stay at a rehabilitation facility. Surgery requiring more than three consecutive recovery days could also qualify if you would be unable to work.

If you have a condition that requires continual treatment by a healthcare provider and leaves you unable to perform the functions of your job, that could also be considered a serious health condition. If your condition requires treatment more than three times in 30 days or ongoing treatment due to chronic illness, that could also qualify.

Examples of qualifying conditions can include cancer treatment, diabetes treatment, severe injuries, anxiety disorders, the birth of a child and recovery, or caring for someone who has a serious medical condition. Mental health conditions such as severe depression or anxiety or treatment of substance abuse are explicitly included in the FMLA’s definition of a serious health condition. Events like routine check-ups and minor illnesses like the common cold or allergies would not be covered by FMLA leave.

Is FMLA paid leave?

No. An employer might provide some pay while employees are on FMLA leave, but the law does not require this. FMLA is not paid leave, but rather a guarantee that an employer cannot fire you because you took leave for a qualifying health condition. Your job is protected during the leave, but your income is not. Each employer has its leave benefits structured differently, and there might be other avenues of getting some sort of income while on leave, such as:

• Vacation or PTO days: Your employer might have a policy that requires you to use your vacation or PTO days first before beginning FMLA leave.
• Short-term disability insurance: Many employers use short-term disability insurance as a stand-in for some sort of paid leave. It’s usually partially paid and you must declare disabilities when applying. Pregnancy is considered a pre-existing condition according to many short-term disability plans, so if you plan on using short-term disability as a stand-in for paid maternity leave, you will need to apply before you become pregnant.
• State-based programs: some states, like California, Washington, and New York offer paid leave programs.
• Employer-sponsored programs: Some employers have leave policies that might be more generous than FMLA, such as having a no-tenure parental leave policy, which means there’s no minimum number of days required to work before being eligible for paid leave.

It’s very important to review your employer’s policies and or talk to the human resources department to familiarize yourself with the information before taking leave.

What happens to my benefits while on FMLA?

Employers who are eligible for FMLA are required to maintain an eligible employee’s health insurance coverage while they are out on leave. That means that your coverage will not lapse while you are out, but it could mean that you might be responsible for paying the employee portion of the premium on your own, rather than having it taken out of your paycheck. It’s important to pay your premiums on time so that your health condition continues to be covered.

While you are out, you might have a pause on other non-health benefits, such as retirement matches, vacation day accruals, or life insurance. It’s important to check with your employer, especially since some employers have more generous benefits than FMLA requirements.

If you are laid off or let go during or after FMLA leave, you could be eligible for COBRA continuation coverage, which are often higher premiums than those that are employer-sponsored. If you are let go while on FMLA leave, you should contact our firm to help you navigate your rights and to make sure you aren’t the victim of discrimination.

What if I’m considered a “highly compensated” employee and take FMLA leave?

There is an exception for highly compensated employees under the FMLA. Highly compensated means an employee that is in the top highest paid 10% of all employees, regardless of title or department, and takes into account salary, bonuses, commissions, and other earned income. In certain circumstances, an employer might not be obligated to reinstate these high earners under certain economic conditions. If you are considered a highly compensated employee you should consult with a lawyer at our firm to make sure that you understand your rights and how your particular situation might be affected. Other laws may apply to your situation even if the FMLA does not guarantee your job.

What happens if my FMLA leave request is denied?

If your employer denies an FMLA leave request, they should give you a clear explanation as to why in writing. Denying a valid FMLA request is illegal.

If you believe there has been a mistake, it’s acceptable to ask for clarification or to ask to provide supporting documentation about your reasons for asking for leave.

If you feel that you have been discriminated against, then call Brian J. Sutherland or Rachel Berlin Benjamin and they can help you determine whether your FMLA rights were violated and whether you have a legal claim under the FMLA.

How long do I have to file FMLA claims in federal court?

You have two years from the date your FMLA rights were violated to pursue the claim in court, but your deadline might be three years if you can prove your employer willfully violated the law. To be cautious, however, it is best to file your claim within two years.

If I have an FMLA claim, what damages can I recover?

You can recover your lost wages, as long as you have documentation showing you diligently searched for a job. If you prove at trial that your employer willfully violated the FMLA, you could be awarded liquidated damages (doubling your lost wages). A judge can also award you with front pay (wages going forward) for a period of time if you still have not found comparable employment at the time of a favorable jury verdict. Reasonable attorneys’ fees and expenses will also be awarded if you prevail.

Contact us to set up a consultation if you feel you’ve been denied FMLA leave you were entitled to or if your FMLA rights have been interfered with in any way.