Your Legal Rights Under FMLA

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Meet Alia Wynne, of counsel at the labor and employment law firm Fisher & Phillips in Houston. Her expertise: issues that pertain to working mothers — from maternity leave to accommodations for lactation breaks — that may have nothing to do with your job description but everything to do with your quality of life.

family leave
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Companies can differ wildly when it comes to what they offer employees as benefits. But since 1993 we’ve had the Family and Medical Leave Act (FMLA), a federal law that requires employers to offer workers unpaid job protection if they need to take a leave for up to 12 weeks for a variety of reasons (from pregnancy to serious health issues). Read on for answers from Wynne about FMLA and our rights in the workplace.

What does FMLA cover?

Generally, [FMLA] requires employers to grant up to 12 weeks of unpaid leave for:

  • Childbirth, adoption, or placement of a foster child
  • Caring for a spouse, child, or parent who has a serious health condition
  • Employees who cannot perform their job duties because of their own serious health condition or who need to miss work for treatment of a serious health condition
  • Employees who need to miss work for certain reasons related to the active military status of their spouse, child, or parent (aka “qualifying exigency leave”)
  • Military caregiver leave (which provides up to 26 weeks of leave)

Who isn’t covered under FMLA?

[FMLA] doesn’t apply to smaller employers (those with fewer than 50 employees within a 75-mile radius), short-term employees (less than one year on the job), or part-time employees (less than 1,250 hours in the past year).

And despite its name, FMLA doesn’t cover all “family”-related absences — like when you have to stay home with a sick kid or your child care arrangements fall through, unless child care arrangements have to be made in connection with active military duty.  

FMLA is meant to apply to “serious” health conditions, rather than minor, everyday illnesses. This can be frustrating if you have young kids who are in preschool or day care, where rashes, flus, and bugs are as easily spread as a fistful of glitter. While most child care providers will send home little ones who have had symptoms in the last 24 hours, most of the colds, coughs, and tummy troubles your little germ magnets pick up will not be “serious” enough to trigger FMLA.

On the other hand, FMLA does cover some chronic conditions that are not necessarily life threatening but require ongoing treatment, such as asthma. Intermittent leave might be available for flare-ups or continuing treatment (such as periodic appointments with a specialist, or physical therapy). And if a minor illness becomes more serious because of an underlying condition or complications, FMLA may come into play.

Can your boss legally decide how to use your time? Are you required to use your paid leave (sick pay, vacation pay, floating holidays) first?

Your boss can’t tell you what to do while you’re on leave, but your job might not be protected if she finds out you were at the spa rather than in the hospital while on disability insurance (even if your doctor said you need to relax).  

And the “care for” entitlement is interpreted strictly — say your spouse, who normally stays home with the kids, is diagnosed with cancer and undergoes chemo treatments.  He can take care of his own basic needs, but he’s too weak to take care of the kids. Are you entitled to FMLA leave to cover his child care duties? No. While his cancer would be considered a “serious health condition,” FMLA wouldn’t apply unless he was unable to care for himself and you were caring for him — not the kids.

Your employer may require you to use your paid leave concurrently with your FMLA leave — your boss doesn’t have to give you additional leave beyond the 12 weeks of protected FMLA leave just because some of it was paid.

When it comes to maternity or paternity leave, what are the three most common areas where issues come up that you, as a lawyer, must get involved in?

To be honest, I rarely see issues related to maternity leave because it’s so clear cut, and questions about paternity leave are even less frequent. I think there is still a stigma against paternity leave, and most men don’t take it — even when paid leave is available — because they feel it’s unacceptable within the culture of their organization.

Likewise, “caretaking” leave still seems to be relegated more often to women. But I think men will (and should) demand more equality in this area, and that doing so will ultimately benefit and promote women’s equality in the workplace and in the home.


Are you guaranteed the same job when you get back?

I wouldn’t call it a guarantee. FMLA requires your employer to return you to the same job or one that is “nearly identical,” but you don’t have greater rights than someone who is not on leave. For instance, if your company goes through a reorganization and your department and job function are eliminated, you’re out of luck since you would have lost your job regardless of your leave.

On the other hand, if your boss adds or takes away significant job duties because you went on leave, it might be a different story. But it cuts both ways: An employer might try to lighten the workload of a new mom returning from maternity leave in an effort to be “nice,” while the new mom thinks she has been demoted as punishment for taking leave.  

Or the new mom might secretly prefer some adjustments, but doesn’t speak up for fear of being perceived as less capable or less committed, while the employer dares not change anything for fear of a lawsuit.

What are three things you would tell a reader to help them avoid any legal issues due to FMLA?

1. Communicate. I have seen many FMLA lawsuits that could have been avoided with better communication. You’re not required to share details regarding your condition or treatment with your boss, but you need to say more than “I’m sick” or “I need to go to the doctor” if you think you qualify for FMLA leave.

If you’re the manager, tread carefully when disciplining employees for attendance or refusing time off if medical issues are involved.

2. Prepare. Try to anticipate what might come up while you’re gone to minimize surprises — take care of whatever arrangements can be made in advance and brief whoever is covering for you. If you think you might need to ask someone to cover a task, give them as much notice as possible; no one likes being dumped on at the last minute. And make sure you return the favor to your coworkers when you can.

3. Know and follow the rules. Become familiar with your employer’s attendance and leave policies. Provide documentation by the requested deadlines. If you can’t, or if your return to work is delayed, tell your employer as soon as possible.

What if your employer isn’t following this law? Where can a worker go for help (without getting fired)?

Talk to HR. Most employers want to follow the law, and would rather remedy a problem at the outset rather than be sued. However, it’s not uncommon for mistakes and misunderstandings to arise.  

Front-line supervisors are not always familiar with FMLA, and in many cases, HR doesn’t find out about the issue until it’s too late. HR is usually in the best position to help you with leave issues, so it’s best to get them involved early on.

More On Maternity Leave:
These Fortune 500 Companies Make Billions — But Won’t Pay For Your Maternity Leave
How Paying for Child Care Could Earn You Millions
6 Successful Women on Their Maternity Leave 

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