Family & Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) entitles eligible employees who work for covered employers to take unpaid, job-protected leave for specified family and medical reasons.
Eligible employees are entitled to:
- Twelve workweeks of leave in a 12-month period for:
- the birth of a child and to care for the newborn child within one year of birth;
- the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- to care for the employee’s spouse, child, or parent who has a serious health condition;
- a serious health condition that makes the employee unable to perform the essential functions of his or her job;
- any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
- Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).
If the employer provides medical insurance to the employee and his/her dependents, the employer is obligated to continue to provide group health insurance coverage.
Which Employers are Required to Provide FMLA Leave for their Employees?
Under federal law, employers with 50 or more employees within a 75 mile radius must provide FMLA coverage
Under DC FMLA, employers need only 20 employees to provide coverage.
Under the MD FMLA or the “Maryland Flexible Leave Act”, employers only need 15 employees to provide coverage.
Unlike the federal FMLA however, the MD FMLA does not cover an individuals own serious health condition, but only an employee’s “immediate family” in this case, the employee’s: child, spouse or parent.
Which Employees Are Covered by the FMLA?
Under federal law, the employee needs to be employed by the same employer for 12 months. The 12 months do not need to be consecutive. An employee can also request FMLA leave if he/she have worked at least 1250 hours during the 12 month period, before the leave request, or an average of 24 hours/week.
Under DC FMLA, an employee needs to have been employed for 1 year without a break in service. Or, worked for 1000 hours before the leave request, or an average of 19 hours/week.
Substitution of Paid Leave
Under certain conditions, employees may “substitute,” or run at the same time as their FMLA leave, accrued paid leave (such as sick or vacation leave) to cover some or all of the period of FMLA leave. An employer may also require employees to substitute accrued paid leave for unpaid FMLA leave even when the employee has not elected to do so. In order to substitute accrued paid leave, the employee must follow the employer’s normal rules for the use of that type of leave, such as submitting a leave form or providing advance notice. If an employee does not meet the requirements to take paid leave under the employer’s normal leave policies, the employee may still take unpaid FMLA leave. Paid leave taken for reasons that do not qualify for FMLA leave does not count against the employee’s FMLA leave entitlement.
Protections Upon Return From FMLA Leave to the Same Or Equivalent Job
When an employee returns from FMLA leave, he or she must be restored to the same job or to an “equivalent job”. The employee is not guaranteed the actual job held prior to the leave. An equivalent job means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location). Jobs are only “equivalent” within the meaning of the FMLA if they entail “equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1)(B). For instance, the jobs “must involve the same or substantially similar duties and responsibilities.” 29 C.F.R. § 825.215(a)
It is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA. Most federal employees and certain congressional employees are also covered by the law, but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress. If you believe that your rights under the FMLA have been violated, you may file a complaint with the Wage and Hour Division of the U.S. Department of Labor, or directly file a private lawsuit against your employer in court.
Kindly contact our office to determine if your rights under the FMLA have been violated.