The Family and Medical Leave Act (FMLA) provides up to 12 weeks of protected unpaid leave for qualifying employees who need time to deal with their own health issues or to provide care for an ailing parent, spouse or child.
In order to qualify, an employee must have worked for at least 12 months and completed 1250 hours in those 12 months. Additionally, the employer must have 50 employees within a 75-mile radius of the work site. If the employee meets those qualifications, and if the employer is covered by FMLA guidelines, then the employee is entitled to FMLA leave.
FMLA leave can cover a variety of issues, including things like hospitalization to care for a chronic condition, and recovery from surgery to complications from childbirth.
It also covers leave for men and women to spend time with a newborn child or to bond with a foster child or adopted child. There is also a provision for the care of members of the military.
The amount of time off an employee receives depends on a recommendation from a physician. The employer has no input on the amount of time that can be taken or when it can be taken. If the employee qualifies, the employee is entitled to the time off.
Let’s say for example that you have been diagnosed with cancer, and you must receive chemotherapy treatments every three weeks. You must see your oncologist and have blood drawn the day prior, and then you feel sick for three days following treatment.
You could take FMLA leave to cover these days when you run out of sick time or vacation time.
Though you would not be paid for these days off, you would be able to take the time off you need without fear of losing your job, and you would be able to take up to 12 weeks’ worth of days off to cover your treatments. In this case, you do not need to take the time off at once, but that is an option if needed.
What Are Your Rights To Reinstatement
When you return from FMLA leave, you should return to the exact same job you held before. The only reason your employer could return you to a different position is when there has been restructuring that has taken place, or something that eliminated your exact position.
In that event, you are entitled to return to a similar position with similar pay and a similar schedule. If this does not happen, you may be entitled to file a claim against your employer.
There are two reasons why your reinstatement date might change. You might not need as much time as initially thought, or you need more time. It is your responsibility to notify your employer if you fall within either one of these situations.
You might find that you recover faster than expected from surgery, or that your sick husband bounces back from his treatment. You would be required to return to work if you are able to, even if you have FMLA leave remaining.
Similarly, if your recovery from surgery is taking longer than expected or if there are complications, then you might need more time so long as you do not surpass 12 weeks in one year.
Can My Employer End My FMLA Leave Early?
Your employer is not authorized or entitled to end your FMLA leave early. You are allowed to take however much time has been afforded to you by a healthcare provider. The only time you would need to return to work early is when the condition changes and you no longer need your FMLA leave.
For example, if you have been doing chemotherapy for several months and you no longer have side effects following treatment, you could be required to return to work in those days following treatment because your condition has changed.
Some employees wonder whether employers can contact them while they are on FMLA leave. This answer is not as clear. If you have a good working relationship with your supervisor and coworkers, you might welcome them calling to check on you.
You might even be asked to provide job-specific information from time to time. Again, this will depend on your relationship with your employer.
However, if you feel pressured to “work” on these calls, or if the calls feel intrusive in any way, then you can refer your employer to the guidelines set forth in your FMLA paperwork so that you are no longer contacted while on leave.
Your employer can certainly ask how you are, but there should be no discussion of returning to work, or expressing hope that you will be back soon (aside from good-natured wishes). This will be at the employee’s discretion, depending on his or her relationship with the employer.
How an Employment Lawyer Can Help
If you have been asked by your employer to return from FMLA leave early, if you are are being told that you must return early or if you are dealing with any other violations of FMLA guidelines, including having your job threatened, refusal of FMLA leave or retaliation for taking leave, then you need to file a claim against your employer. Claims are filed with the Department of Labor’s Wage and Hour Division (WHD).
You can also choose to file a private lawsuit against your employer.
In either case, it is a good idea to speak with an employment lawyer to determine what your next steps should be.
An employment lawyer will be able to tell you what options you have for filing a complaint, whether it is a claim through the WHD or it is a private lawsuit.
Though hiring an attorney does not guarantee that you will win your case, having an expert working on your behalf greatly improves the odds of a favorable outcome.
Some of the remedies that might be available to you include lost wages, lost FMLA leave time, out of pocket expenses, legal fees and even emotional distress.
You can meet with an employment lawyer for an initial consultation, at which point you will have a sense of what your plan will be. In many cases, employment lawyers offer a free or reduced cost consultation, and then they will outline their fee structure.
Some employment lawyers will work on a contingency fee basis, meaning that you will not pay anything to start your case and you will only be required to pay if you win your case.
For more information about how an employment lawyer can help you, fill out a free case evaluation.