Medical Leave (FMLA)

What is protected medical leave?

For a number of reasons, it might be necessary for an employee to take a medical leave of absence. Perhaps it is because of a serious medical condition that requires care, perhaps it is because the employee is suffering from ongoing medical issues that requires periodic absences, or perhaps it is to care for a sick spouse or other family member.  Recognizing that these situations impact millions of Americans, in 1993 the Family and Medical Leave Act was enacted by Congress. The law affords certain employees up to twelve weeks of unpaid leave to address medical and other important family issues. 

While the FMLA is intended to be fairly simple and straight forward, there are a number of regulations that make the law somewhat complicated and difficult to understand. Unfortunately, employers don't always understand an employee's rights under the FMLA. 

Who is entitled to medical leave?

Unfortunately, the FMLA does not provide guaranteed medical leave to all employees.  For example, an employer who has less than 50 employees is not required to make FMLA time available for its employees.  Also, employees who have not been with an employer for at least a year and certain part-time employees are not eligible for federally protected medical leave.

Additionally, medical leave is not available for any medical issues.  The law requires that the medical issue be serious and it defines those medical conditions that qualify.  

If you question whether you are entitled to FMLA leave it makes good sense to contact us to discuss the specifics of your case. We can discuss your concerns with you for a flat fee and provide you with guidance on how best to proceed.

How much medical leave am I entitled to?

The FMLA provides that otherwise eligible employees are entitled to 12 weeks of unpaid medical leave.  What is often misunderstood is that this leave time does not have to be taken all at one time.  For example, an employee might need to take 2 weeks off and then take another 2 weeks off several months down the road.  Alternatively, an employee might need to take a couple of hours off every day to care for an elderly parent.  The 12 weeks need not be consecutive and it can be taken incrementally.

Do I need a lawyer if I am going to take a medical leave of absence?

The answer to this question depends upon your personal employment situation.  Employers treat requests for medical leave differently with some requiring documented paperwork and others having a much less formal approach. There are, however, certain things that employees need to consider when notifying their employer of their intention to take a medical leave.  For example, the reason for the leave needs to be clear and, oftentimes, documented by a physician's statement.  Also, the amount of leave needs to be clear and an employee needs to fully understand their rights and responsibilities while they are on a leave of absence.  It is important for employees to both understand their legal rights under the FMLA and to understand that the forms that they and their physicians are asked to complete can be tricky. Mistakes on these forms can end up resulting in a denial of your leave or might complicate your return to work.  If you have questions about your entitlement to a medical leave or feel as though your rights have been violated, contact us to speak with one of our attorneys.

Can my employer deny my request for a medical leave?

If your employer has denied your request for a medical leave and you question their grounds for doing so, contact us and speak with one of our attorneys. There are certainly times when an employer may properly deny such a request, however, we find that medical leave is often improperly denied.

Can my employer penalize me for an unexcused absence because I am sick?

Assuming that your absence would qualify under the FMLA, an employer can not do this, however, it happens all of the time.  Many employers maintain policies that require absences to be scheduled in advance and if an employee runs afoul of that practice they receive some type of a mark.  Typically, the policies provide that once you obtain several of these strikes against your attendance record, you are subject to discipline and, potentially, termination.

When this happens, all too often an employee will get written up and told that if it occurs a certain number of times in the future their employment will be terminated.  Employees typically shrug their shoulders and don't think about it much because they know they have several other "strikes" before they can be suspended or terminated.  This way of thinking, however, has lead to a lot of problems.  Your first and third absences under the policy potentially should be protected, however, maybe your first, third and fifth absences are not protected.  By the time you get to your fifth absence (i.e. the absence that will cause termination) it can be too late to challenge what happened in the past.  In short, what was not thought to be a big deal at the time can cause major problems down the road.

If your employer has penalized you for missing work under its policies, even if it hasn't caused you to lose pay, you need to speak with an attorney who can assist you in getting that removed from your personnel file.

When should I contact a lawyer regarding my medical leave?

If your medical leave has been denied or you have been subjected to discipline because of medical leave, it is wise to contact an attorney. We have represented scores of employees who are dealing with a variety of leave issues. From advising employees on how to properly go about requesting leave through federal litigation, we can work with you to help insure that your rights are adequately protected and that you will be able to take the leave you need without having to worry about the security of your job.