Under the Family Medical Leave Act (FMLA), employees are eligible for up to twelve weeks of unpaid leave in a twelve month period for their own serious health condition, the serious health condition of a parent, child or spouse, or the birth, adoption or placement for foster caser of a child (including paternity leave). The leave may be taken in a block, intermittently, or on a reduced schedule. The FMLA defines a serous health condition very broadly as any absence where the employee sees healthcare provider, is prescribed medications, and is incapacitated according to a healthcare provider for three or more consecutive days. Serious health conditions can include such maladies as migraines or even asthma. The employer may require certification of the serious health condition, and may even require the employee to obtain a second or third opinion, and periodic recertification of the condition.
The FMLA applies to all public agencies and private sector employers who employ fifty or more employees within a seventy-five mile radius in twenty or more work weeks in the current or preceding calendar year. In order for an employee to be eligible for FMLA coverage, they must work for a covered employer, have worked for the employer for the previous twelve months, have worked at least 1,250 hours in the previous twelve months, and work in a location where at least fifty employees are employed by the employer within seventy-five miles. Employee eligibility is determined at the time the leave starts, not when the leave is requested.
When possible, employees must provide thirty days notice to the employer that they intend to take FMLA leave. If it is not possible for the employee to provide notice, notice must be provided as soon as practicable, usually the same or next business day. In giving the notice, the employee must provide sufficient information for the employer to determine if the FMLA applies.
When an employee is on FMLA leave the employer must maintain group health insurance coverage for the employee. However, the employer may require the employee to pay his or her share of the premiums. And in some cases, where an employee fails to return after FMLA leave, the employer may recover the premiums paid.
When an employee returns from FMLA leave, they must be returned to their original job or an equivalent job with equivalent pay. Taking leave also cannot result in a loss of benefits that were earned or that the employee was entitled to prior to taking the FMLA leave. However, bonuses tied to production, hours worked or perfect attendance do not have to paid, unless they are also paid to an employee on equivalent non-FMLA leave status.
As of January 25, 2008, the FMLA also provides coverage for family members of military service members. First, caregiver leave provides up to twenty-six weeks of leave every twelve months to care for a service member with a serious injury or illness incurred in the line of active duty. Second, call to active duty leave allows for up to twelve weeks of leave due to "qualifying exigency" arising out of a call to active duty.
If you have any questions regarding these medical leave issues, contact the Law Offices of Santiago J. Padilla, P.A. as soon as possible. Based in Miami, Florida, we represent employers and employees throughout South Florida in employment cases. To set up an initial consultation, you can contact us through the Internet or call us at (305) 358-1949.
