MOU ZHENG LAW FIRM
WHO DOES THE FAMILY AND MEDICAL LEAVE ACT PROTECT?
The FMLA applies to employers with 50 or more employees within a 75-mile radius of the worksite. An employee of that employer is eligible for protection under the FMLA if 1) the employee has worked for the company for at least 12 months, and 2) the employee worked at least 1250 hours during the 12 months prior to starting FMLA leave.
WHAT ARE AN ELIGIBLE EMPLOYEE’S RIGHTS UNDER THE FMLA?
The FMLA provides that an eligible employee may take up to 12 weeks of leave to address a serious medical condition of the employee’s own or of a family member of the employee. Family members include the employee’s spouse, children, and parents. The leave entitlement renews every 12 months if the employee meets the eligibility requirements. In addition to provisions of the Act itself, FMLA regulations apply.
Generally, employees are entitled to 12 workweeks of leave for the following:
– Birth of a child and caring for a newborn within one year of birth
– Adoption or foster placement of a child and care for one year after placement
– Serious health conditions (as defined by FMLA regulations) of the employee or a qualifying family member
– Qualifying emergency of a covered military member on active duty
Special provisions of the law apply for situations arising out of a family member’s military service. Under the FMLA, covered military caregiver leave provides 26 workweeks of unpaid leave during a 12-month period.
FMLA leave is unpaid leave, although an employee may be allowed or required to use accrued paid leave. The employee is entitled to continue group health care insurance while on FMLA leave, under the same terms and conditions as preceding the leave.
The FMLA protects an employee’s job after qualified leave. Under the law, the employee is entitled to the same or a similar position on returning from FMLA leave.
It is important to mention that FMLA regulations may change in the near future. In July 2020, the United States Department of Labor published a Request for Information on the FMLA, inviting comments on a wide range of issues. The deadline for comments was September 15, 2020. After the Department evaluates the comments, it may propose changes to the regulations or the FMLA itself.
WHAT ARE EMPLOYER NOTIFICATION REQUIREMENTS UNDER THE FMLA?
Employers covered by the FMLA who have eligible employees must provide certain notifications to their employees. The employer is required to display a general notice about the FMLA, in the form of an FMLA poster, as well as provide notice to employees about their eligibility status and their rights and responsibilities under the law.
Employees also must be notified if specific leave is designated as FMLA leave and what amount of that leave counts against the employee’s leave entitlement. Detailed information about FMLA employer notification requirements is available in a Fact Sheet from the U.S. Department of Labor Wage and Hour Division.
WHAT EMPLOYER CONDUCT VIOLATES THE FMLA?
An employer who denies an employee any of the rights guaranteed under the FMLA or retaliates against an employee for exercising those rights is in violation of the law. There are many types of employer actions that can constitute a violation.
Denial of leave under the conditions specified in the Act may be a violation. In addition, discrimination or retaliation based on an employee taking FMLA leave in any form is prohibited, such as imposing a penalty or extra work, firing, or putting the employee in a lesser position. Harassment or denial of a promotion also may constitute retaliation.
WHY SHOULD YOU TALK TO AN EMPLOYMENT LAWYER ABOUT POSSIBLE FMLA VIOLATIONS?
Employees who believe their employer violated the FMLA may file a complaint with the U.S. Department of Labor, Wage and Hour Division. An employee also has the right to file a private lawsuit against the employer in a federal or state court having jurisdiction.
A time limitation applies to filing a lawsuit, called the statute of limitations. Generally, a legal action must be filed within two years after the last act that violated the FMLA. The statute of limitations is three years for willful violations, although the court must determine whether a violation is willful.
In many situations, if you face a violation of your rights under the FMLA, consulting with an attorney is the best approach for securing a resolution within a reasonable amount of time. The Department of Labor takes time to investigate complaints and does not always pursue legal action on behalf of an employee. When you retain an employment attorney, your lawyer works only for you. After analyzing your circumstances and evaluating your legal claim, your lawyer advises you on what options you have and helps you determine the best way to proceed.
DOES FMLA APPLY TO COVID-19 WORKPLACE LEAVE ISSUES?
In March 2020, the United States Congress enacted the Families First Coronavirus Response Act (FFCRA), including specific COVID-19 protections and relief contained in the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, which are part of the FFCRA. These federal laws and regulations subsequently adopted by the U.S. Department of Labor include special leave provisions for COVID-19 workplace effects. The provisions currently are set to expire on December 31, 2020.
