Family and Medical Leave Act (FMLA): Protections For Parents
by Loring N. Spolter, Esq.
Parents of children having disabilities and serious medical conditions are at high risk for employment discrimination.
Family and Medical Leave Act (FMLA)
The law permits
mothers and fathers to take unpaid leaves of absences from work - with
the promise of having jobs to come back to. With FMLA, parents can take
time off from work when their children are hospitalized or are confronted
with "serious health conditions" requiring routine appointments
with medical doctors, mental health counselors, physical therapists, speech
therapists and other professionals.
- For How Long?
Leaves of Absence
To be eligible to use FMLA, the employee taking leave must:
1) have at
least 12 months job seniority;
Workers taking extended leave must be returned to the same or equivalent positions to those previously held.
While FMLA protects persons employed in the private sector and the Federal government, a number of court decisions cast doubt as to whether state governments have to comply with this law. However, some states have FMLA-type laws or regulations protecting those within their employ.
While workers are supposed to have fair access to FMLA leave, the U.S. Department of Labor reports that employers violate FMLA in an alarming 60% of the cases it investigates. Most FMLA complaints involve claims that employers refused to grant leave or denied reinstatement to workers who took time off, according to the Department of Labor. Also, it is illegal for employers to retaliate against persons for having sought or utilized FMLA leave.
For memos handed in, make certain that your copy is stamped "received". FMLA communications made by mail should be done so by certified, return receipt postage. Safely store a copy of your letter and once it is returned, do the same for the proof of receipt card provided by the post office. Obtain verification of proof of mailing with a hand stamp on a green and white postal slip by handing your letter directly to a postal clerk instead of leaving it in a mailbox.
Also, consider faxing your request and keeping the "verification" slip produced once fax transmissions are completed, along with the cover page and actual communication sent.
If circumstances don't permit sufficient time for communications to be in writing, be sure to follow up verbal notices with written correspondence. Memos, return receipt mail and fax transmissions provide "hard copy" verification, making these "old fashioned" communications preferable to "e-mail." Remember, jurors can't hold an "e-mail" in their hands.
2. Briefly state in your memo or letter either the nature of your child's ailment or that your child has a serious health condition.
Employers are not obligated to grant time off to those parents who wish for time off to attend to children with minor ailments but must permit sporadic or longer lasting leave when parents take time off to assist children confronting serious health concerns.
3. Be sure to mention that the leave period will last no longer than 12 weeks.
FMLA does not obligate employers to grant leave in excess of 12 weeks.
4. Request FMLA once you learn it will be needed.
Although FMLA generally requires 30 days advance notice prior to taking leave, this rule is waived for unforeseen circumstances. When unexpected need arises, state this in your communication.
5. Employers have the right to request that your child's physician complete a form which documents the seriousness of the ailment which is leading to your missing work.
To be certain that the paperwork is completed and returned to the employer on a timely basis, you should obtain the physician's completed paperwork and personally see that the documents are provided to the proper person at the workplace. Employers are permitted to fire persons who fail to submit verification within FMLA deadlines.
6. If you sought less than 12 weeks leave and need more time than originally asked for, inform your employer of this in writing - as soon as you realize more time is needed.
7. Keep in contact with your supervisor or the Human Resources Department by communicating when you anticipate returning to work.
If conveying this information verbally, be sure to promptly confirm it in writing.
Finding A Lawyer in Your Area
Contact the National Employment Lawyers Association's national office in San Francisco, CA at (415) 227-4655 to ask for a listing
of member attorneys licensed to practice law in your area or refer to
the organization's website at www.nela.org
About the Author
Spolter is an employment law attorney in Fort Lauderdale, FL.
Mr. Spolter has led continuing legal education courses on the Family & Medical Leave Act for the National Employment Lawyers Association and the American Bar Association.