The Family Medical Leave Act (FMLA) became law in 1993. The federal regulation requires certain employers to allow workers who are unable to perform their duties because of a serious illness or the need to care for a relative who has a serious health issue to take 12 weeks of unpaid leave without fear of losing his or her job. The leave may be taken all at once or intermittently. To be eligible for FMLA benefits, an employee must work for a certain size private employer, file the proper paper work, and specify the type and length of leave requested.
To qualify for traditional FMLA benefits, an employee must work for a private employer with at least 50 employees within a 75-mile radius. The employee also must have worked for the employer in the position he or she is seeking leave from for at least 12 months and for a total of 1250 hours prior to applying for leave. Additionally, an employee must personally be experiencing a serious health crisis, have an ill family member requiring his care or a spouse in the military who is deployed or ill. Other eligible reasons for leave include bonding with a new born child or dealing with the placement of a child in foster care or up for adoption.
In terms of notice, unless the onset of the illness or reason for the leave is unexpected, the employee should give his or her employer 30 days' notice. Employees also must supply enough information about the situation that has given rise to their leave request to allow their employer to make a valid FMLA eligibility determination. If the employee does not provide the employer with the required information or any supplemental information that is requested, the leave may be denied. Courts have also recently considered the issue of what constitutes sufficient medical proof of the need for FMLA leave, noting that under the FMLA, “an employee seeking leave need not submit a medical certification unless and until one is specifically requested by [the] employer.”
Intermittent Leave
While traditionally family medical leave is awarded for a continuous 12-week period, intermittent leave is also an option. Intermittent leave is defined in 29 CFR 825.202 as “leave taken in separate blocks of time due to a single qualifying reason.” The leave may be taken in one hour periods or for one or more days over several weeks. Much like the more traditional form of family medical leave to be eligible for intermittent leave, the employee must prove he or she is experiencing a medical crisis, has a sick loved one in need of assistance or is dealing with one of the other situations protected under the FMLA. The main difference is that the employee must provide additional documentation describing why his or her particular situation is best served by taking an intermittent leave versus a sequential 12-week hiatus.
To qualify, a worker requesting intermittent leave must provide the employer with a medical certification that describes his or her serious health condition and addresses the reasoning for and type of time off being requested. Typical reasons for requesting this type of leave include medical appointments for the employee or a sick relative, chemotherapy, or reoccurring medical conditions that prevent a worker from properly performing his or her job. However, employers are not required to allow an eligible worker to take intermittent leave after the birth of a healthy child unless both the employer and employee agree to the arrangement. In certain situations, an employer may also transfer an employee to an alternative position that is better suited to accommodate the intermittent leave with equivalent pay and benefits. Once the leave is over, the employee must be allowed to return to the same job he or she previous held or a nearly identical position. However, key employees may not be guaranteed reinstatement to their former positions.
Recent case law illustrates some of the challenges of obtaining intermittent leave. Since the leave is often spread over an entire calendar year, employers have argued that it is not eligible under the FMLA. In Santiago v. DOT, an employer denied the intermittent leave request and exemption from overtime of an employee who suffered from migraines. While the plaintiff filed the required application with his employer and provided a detailed medical certificate, the employer determined that the request was not covered by the FMLA. In the medical certificate the doctor stated that Santiago would be unable to work approximately 4 times a year for 3 days at a time. He also could not work more than 8 hours a day because the added stress exacerbated his symptoms.
Unfortunately, on the application he filed along with the medical certificate, he inadvertently left a question blank and failed to respond to his employer's request for the missing information. The employer argued that the migraines were not a qualifying reason for leave under the FMLA, since the employee was not undergoing medical treatment during the time the leave was requested. Additionally, exemption from working overtime could not be part of leave requested under the FMLA. The employer also stated that the employee had not followed proper procedure by failing to completely fill out the leave application and provide the additional requested information. The court held that the employee's condition did meet the eligibility requirements for FMLA benefits. He, therefore should be allowed to not work overtime and take time off when he was not under medical care. The court concluded that the employer should allow the plaintiff to retain his position, not work overtime, and take the requested intermittent leave.
The issue of taking intermittent leave after the birth of a healthy child has also been addressed in the Second Circuit. In Gooden v. Department of Corrections, a new father applied for intermittent leave after the birth of his child and the employer denied his request. The court held that employers are not required to approve a deviation from the traditional practice of allowing parental leave in a single twelve-week block for a normal birth in absence of an agreement between the employer and the employee.
If applying for intermittent leave, there are several key points to remember.
- Only private employers with more than 50 employees are required to provide leave under FMLA.
- Employees applying for leave must have a medical need or an ill family member requiring his or her care.
- When applying for leave a medical certification describing the employee's ailment and the type of leave required needs to be supplied to the employer.
- If additional information is requested by the employer, it should be supplied in a timely fashion.
- After leave has been granted, an employee may be required to temporarily take a comparable position that can better accommodate the new work hours.
As always, if you need assistance with the process of applying for leave under the FMLA or encounter difficulty obtaining leave from your employer that you believe you are entitled to, it is best to consult an attorney.
Leave to Care for a grandparent
The Family and Medical Leave Act (FMLA) allows qualified employees of large (50-plus employees) or public employers to take time off to care for certain close family members with a serious health condition. In a recent case, out of the Second Circuit Court of Appeals in New York, the Plaintiff was denied leave to care for his seriously ill grandfather, and was thereafter terminated from his position for being absent without leave. He brought a lawsuit against the employer alleging interference and retaliation in violation of the FMLA. The lower dismissed the case before trial, on the basis that the Plaintiff had not properly notified the employer of his need for FMLA leave.
The FMLA allows employees time off to care for seriously ill parents as well as family members with whom the employee has an in loco parentis relationship. In loco parentis means “in the place of a parent” and would apply to, for example, an individual who took care of the employee as a parent prior to the employee attaining the age of 18.
The lower court determined that, while the Plaintiff had notified the employer of the need to care for his grandfather, he had failed to notify them of the in loco parentis relationship with his grandfather that would have entitled him to FMLA protection. The Plaintiff took the position that, had he been told about the availability of FMLA to care for a grandparent if they had an in loco parentis relationship, he would certainly have advised the employer of this situation.
On Appeal, the Second Circuit Court of Appeals initially reaffirmed the principle that an employee may be entitled to FMLA protected leave to care for a grandparent, where the employee had an in loco parentis relationship with the grandparent while a child.
The Second Circuit court then considered the adequacy of notice by employees under the FMLA, noting that the regulations state that “when an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA…the employer will be expected to obtain any additional required information through informal means.” Moreover, when an employer acquires notice that an employee's requested leave may be for an FMLA-qualifying reason, the employer bears the obligation to notify the employee of the eligibility to take FMLA leave within five business days, absent extenuating circumstances.
Under the circumstances, the Court concluded that “the obligation of an employee to give notice of [the] need for FMLA leave is not the obligation…to provide the employer with all of the necessary details to permit a definitive determination of the FMLA's applicability at or before the time of the request. Rather, in the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply.” Here, the Plaintiff provided sufficient notice that he may be eligible for FMLA leave, which was enough to satisfy his burden.
If you have questions about violations or rights under the FMLA contact us today.
