Family and Medical Leave Act

We get it. Things happen. You may get sick or injured, or somebody close to you may get sick and injured and you need to take time off. Unfortunately, many employers are still under the mistaken belief that they own their employees and are not required to provide time off, even unpaid, to those that are sick or injured or need to care for someone who is sick and injured,

What happens when an employee has a medical emergency of the sort that can't be overcome with a day or two of recuperation at home? What if it's necessary to take weeks or even months off to deal with this health issue? Today the law provides workers with wide-ranging protections that prevent their bosses from taking this kind of punitive action. Our Southern California FMLA lawyers understand the laws governing these matters and can help you take action to protect your livelihood.

The federal law that covers workers who experience a medical emergency is the Family and Medical Leave Act of 1993 (FMLA for short). If you're an employee of a company required to abide by the FMLA—not all are, but we'll get into that later—then you need to know about this law and the various safeguards that have been built into it for the benefit of people like you.

The FMLA

Under the Family and Medical Leave Act, employees are given up to 12 weeks of unpaid leave per year to recover from an illness or manage a medical emergency (including pregnancy and childbirth) Qualified workers who take time off cannot be fired by their employers for failing to perform their job functions during their leave.

Who is Covered?

The Family and Medical Leave Act protects employees who are experiencing a medical problem, such as a long-term illness or issues pertaining to pregnancy or childbirth. FMLA leave is also guaranteed to new parents (including adoptive parents) who prefer to spend time with their child; in this case, leave time must conclude within the 12-month period after the birth or placement of the child.

The FMLA also covers immediate family members of persons who meet any of the above criteria; e.g., a spouse who wishes to serve as a temporary caregiver for their ailing husband. In addition, the FMLA provides 26 weeks of leave for the immediate family of a military service member who has sustained an illness or injury.

Who Qualifies?

To earn FMLA protections, workers must have been employed at their current company for at least 12 months and have accumulated at least 1,250 work hours during the 12-month period immediately prior to beginning the leave.

The 12 months of employment may be non-consecutive in nature, but in general, it must have been accumulated within the last seven years. Also, the 1,250 work hours cannot include vacation time or sick days. There are special rules in place for airline flight crew employees.

Which Employers must Comply with the FMLA

It's important to understand that not all companies have to provide leave time under FMLA provisions. A company in the private sector is required to comply with the FMLA only if it employs at least 50 workers within a 75-mile radius of the site where the covered individual is employed.

Public agencies (e.g., local or federal governments), as well as elementary and secondary schools, always must comply with the FMLA, irrespective of the size of their workforce.

Will I be Entitled to Return to My Old Job?

Not necessarily. The FMLA requires businesses to rehire employees—upon the completion of leave time—giving them back their previous position or an “equivalent job.” The employee cannot be demoted, but there is no guarantee that they will be given their old position.

Can my Employer Demand Proof of my Medical Condition?

The employer may require a health care provider to certify or authenticate the FMLA applicant's medical issue. However, the employer cannot ask the employee to turn over their private medical records. The employer should request certification within five days after the date that the employee formally asks for leave time.