Can I Take Fmla to Care for My Pregnant Daughter

Learn some common ways employers violate the FMLA.

The Family and Medical Leave Act (FMLA) is a federal law that gives eligible employees the right to take time off for certain caretaking responsibilities and health problems. This law has helped thousands of employees balance work and family obligations. However, not every employer understands the law -- and some willfully violate its provisions. This article explains some common violations of the FMLA.

Eligibility Problems

Employers with at least 50 employees must comply with the FMLA. Not every employee of a covered employer is eligible for leave, however. An employee must have worked for at least a year, and at least 1,250 hour during the previous year, at a facility that has at least 50 employees within a 75-mile radius, to be covered.

Not every reason for leave is covered, either. Employees may take leave only for:

the birth, adoption, or foster care placement of a child
the employee's own serious health condition
a family member's serious health condition
qualifying exigencies arising out of a family member's military deployment, or
a family member's serious injury or illness arising from military service.

Employers get in trouble here by misinterpreting the law to deny employees coverage. Here are some examples:

Failing to recognize serious health conditions. Although the FMLA doesn't cover minor ailments, some employers violate the law by refusing to allow employees to take leave for qualifying conditions. For example, although a cold generally won't qualify as a serious health condition, an employee who develops complications, such as bronchitis or pneumonia, is likely covered by the FMLA.
Disciplining employees for excessive absences. Some employers have "no-fault" absence policies, which count every absence for any reason against the employee. Once an employee reaches a certain number of absences, discipline ensues. However, an employer may not count FMLA-qualified absences against an employee. This sometimes comes up because an employer doesn't ask for more information about the reasons why an employee is absent, and so misses the fact that the employee is eligible for FMLA leave.

Notice and Certification Problems

Employers must provide eligible employees with a series of notices of their FMLA rights. Employers may also ask employees to provide documentation -- called a certification -- of their need for certain types of leave. And, employees are legally responsible to provide notice of their need for FMLA leave. (For more information on these requirements, see Employee Notice and Certification Requirements Under the FMLA.)

Employers violate these provisions by, for example:

Requiring employees to give too much notice. The FMLA allows employers to impose their own notice policies if employees want to use paid leave during their FMLA time off. However, employees are still eligible for FMLA leave as long as they give the notice required by law.
Failing to inform employees of their rights and obligations. If the employer doesn't give an employee the information required by law, it can't hold the employee to those obligations.
Failing to recognize employee notice. An employee doesn't have to invoke the FMLA to give notice: As long as the employee provides enough information to let the employer know that leave is needed for a covered reason, the employee has given sufficient notice to trigger the employer's obligations.

Find out everything you need to know about the FMLA with Nolo's book The Essential Guide to Family & Medical Leave.

Leave Management Problems

Employees are entitled to 12 weeks of leave per year for most qualifying conditions; employees who need time off to care for a family member with a service-related injury or illness may be entitled to 26 weeks of leave in a single 12-month period. While an employee is on leave, the employer must continue the employee's health insurance. The employer may communicate with the employee during leave, but not to the point of interfering with the employee's time off.

Some common legal violations here include:

Failing to continue health insurance. Some employers are simply ignorant of this requirement; some cut off employee insurance prematurely. For example, if an employee is more than 30 days late in making a premium payment, the employer must give the employee written notice and an additional 15 days to make the payment before cutting off coverage.
Hounding or pressuring employees who are on leave. Employers have the right to request periodic status reports while employees are on leave. However, an employer that puts pressure on an employee to return sooner that the employee planned, checks up on an employee constantly, or requires an employee to provide detailed information beyond what the FMLA allows has violated the law.
Disciplining or firing employees for taking leave. Only the least savvy employer would punish an employee for using the FMLA. However, more subtle forms of discipline can crop up, such as counting time off against an employee, giving an employee a bad performance review based on work that wasn't completed because of the employee's leave, and so on.

Reinstatement Problems

With a few limited exceptions, employees are entitled to be returned to their prior positions when their leave is over. Plenty of mistakes are made here, including:

Reinstating an employee to a lesser position. If the employee's former position isn't available, the employer may give the employee an equivalent position. A position is equivalent only if it is virtually identical to the employee's former position in pay, benefits, duties, site, shift, schedule, and so on. Some employers miss the mark by putting returning employees into any available position, giving an employee less responsibility and fewer perks, and so on.
Postponing reinstatement. An employee must be reinstated immediately, after giving two days notice. Some employers force employees to wait for their position to open up or for the employer to shift schedules and job duties; this is not allowed under the law.
Failing to reinstate benefits. An employee is entitled to the same benefits; they may not be required to take a physical, wait for open enrollment, or otherwise requalify for coverage. If any automatic raises occurred while the employee was on leave (such as a cost of living increase), the employee is entitled to that, too.
Misclassifying the employee as a key employee. Employers aren't required to reinstate key employees (employees who are among the highest-paid 10% of employees within 75 miles), but only if reinstatement would cause substantial and grievous economic injury to the company. Key employees are entitled to take FMLA leave. Some employers refuse to allow key employees to take FMLA leave, or classify employees as "key" if giving them time off would be a hardship for the company. This isn't the test, however: An employee is "key" only if reinstatement would cause the injury.

Next Steps

If you believe you are entitled to FMLA leave and your employer has refused or interfered with your legal rights -- in the ways described above or any other way -- you should speak to a lawyer right away. Often, particularly if you are facing an emergency, bringing a lawyer in to help you negotiate is the best way to guarantee your rights under the law. If you have already been denied leave or disciplined for using it, a lawyer can help you assess your options and decide how best to move forward. Some possibilities include trying to negotiate a settlement of your claims, filing an administrative complaint with the Department of Labor, or filing a lawsuit.

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Downey Pasky1977