FMLA 101 - a primer on your rights!

In the United States, generally speaking, just because you have employment does not guarantee health insurance benefits or paid sick leave. This applies to healthcare, dental, vision, and life insurance. Additionally, when benefits are offered, an employee can always ask their employer to cover the costs of health insurance or contribute to the cost of these benefits. Of course, employees can decline to contribute.? However, if they do that, they will have no coverage through their employee.? This then results in the onus falling on the employee to find and pay for their own health insurance.

With this as a backdrop, let’s say that you have an emergent and imminent or serious medical condition and need to take time off from work. What can you do.? If you fit certain criteria, you may take FMLA[1] leave for a qualifying medical or family reasons, despite not having health insurance.

What is it? The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 workweeks of unpaid leave per year. It also offers a level of job security, as employees on FMLA leave are entitled to return to their “same or an equivalent job” at the end of their FMLA leave.

Is my employer covered? All employees of public agencies (local/state/federal); local education agencies (i.e. schools); and private sector employees who have 50 or more employees for at least 20 workweeks in the current or preceding calendar year are covered.

Who can use it? Any employee who meets the following criteria can take FMLA leave: 1) works for a covered employer; 2) worked at least 1,250 hours[2] during the 12-month period prior to the start of the leave[3]; 3) work at a location where the employer has 50 or more employees within a 75-mile radius; and 4) worked for the employer for 12 months.[4]

When can I use it? Eligible employees typically use FMLA take to care for themselves or another when experiencing serious medical conditions. A non-exhaustive list of qualifying FMLA reasons:

• to prepare for the birth of child, and to bond with the newborn child;
• for the placement and bonding of a child through adoption or foster care;
• to care for an immediate family member with a serious health condition;
• to take medical leave when the employee is unable to work because of a serious health condition.

How do I use it? If possible, employees should provide 30 days’ advance notice that they intend to use FMLA leave. However, if the situation is emergent, the employee should give notice to their employer as soon as possible. For planned, ongoing medical treatment, the employee should try their best to schedule treatments at times that result in minimal disruptions to their work schedule.

Generally, covered employers cannot deny leave to eligible employees when they need time off or subject them to an adverse employment action. [5] ?However, if the employee did not provide ample or timely notice to their employer, the employer may choose to delay or deny the employee’s request. Employers are also not allowed to retaliate against employees before, during, or after their FMLA leave. However, employees must provide medical certification within a reasonable timeframe if asked to prove their leave is related to a medical condition or caring for a qualifying family member with a medical condition.?

FMLA Protections

If an eligible employee working for a covered employer takes FMLA leave and their employer retaliates against them, this can be considered FMLA retaliation. To prove this cause of action, the employee must be able to prove that they were eligible for FMLA, took or planned to take FMLA leave, their employer subjected them to an adverse employment action[6], and there exists a causal relationship between the employer’s adverse action and the employee’s FMLA leave. Basically, the employee must prove that they would not have suffered this adverse employment action but for the fact that they took FMLA leave.

Covered employers are also prohibited from interfering with an eligible employee’s FMLA leave. This is known as FMLA interference. To prove FMLA interference, an employee must show that they were entitled to an FMLA leave but it was denied for reasons that are not reasonable.

New Jersey

New Jersey offers Temporary Disability Insurance[7], Family Leave Insurance[8], and Maternity Leave Coverage[9] for eligible employees. Under NJ Family Leave Act, eligible employees are typically entitled to 12 weeks of leave in addition to FMLA. Eligible employees can use Family Leave Insurance[10] to bond with a child, care for a sick family member, or pregnancy. Under the Family Leave Insurance, eligible employees receive 85% of their average weekly wages.

New York

New York State offers Paid Family leave to eligible employees[11] who work for private employers. Employees can take advantage of paid family leave to care for a family member with serious health conditions; bond with a child within 12 months of the child's birth, adoption or foster placement; or to assist loved ones when a family member is deployed abroad[12].

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En nuestra firma hablamos espa?ol. This blog is for informational purposes only. It does not constitute legal advice and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.?This blog may constitute attorney advertising.?This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.

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[1] The Employee’s Guide to the FMLA: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/employeeguide.pdf

[2] This hour requirement does not include paid or unpaid leave.

[3] Different rules apply to airline flight crew members. See https://www.dol.gov/agencies/whd/fact-sheets/28j-fmla-airline-crew for more details.

[4] This time period does not need to be 12 consecutive months.

[5] If the employee does not meet the criteria for FMLA leave (1250 hours/12 months working) then the employer can deny the FMLA leave request. If the request is for an unqualified reason, the employer can deny the FMLA leave. ?

[6] Examples of common adverse actions: write-up, demerits, suspension, demotion, termination.

[7] Temporary Disability: When You're Sick, Injured, or Post-Surgery https://www.nj.gov/labor/myleavebenefits/worker/tdi/

[8] Family Leave Insurance https://www.nj.gov/labor/myleavebenefits/worker/fli/

[9] When You're Pregnant or Just Had a Baby/Maternity Coverage https://www.nj.gov/labor/myleavebenefits/worker/maternity/

[10] NJ Family Leave Insurance FAQ FLI FAQ

[11] NY State Paid Family Leave Eligibility https://paidfamilyleave.ny.gov/eligibility

[12] More information on NY Paid Family Leave: https://paidfamilyleave.ny.gov/employees