The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take unpaid time off work to handle certain health and family matters. Although this important law has been on the books for 25 years, some employers still aren’t following the rules. This can result in a lot of stress and suffering for their employees, as well as financial costs. Below, we explain how to know if your employer is violating your rights and what you can do about it.
Some employers intentionally violate the law, hoping they can get away with it. Others simply make mistakes because they don’t keep up when the rules change, their companies grow to a size that makes them subject to the FMLA, or they are too lax about paperwork and notice requirements. No matter what your employer’s motivations, you should be on the lookout for the following all-too-common problems.
Employees don’t have to say they need “FMLA leave” or use any other legal phrase. Instead, they need only give the employer enough information to realize that the request for time off is covered by the FMLA. For example, employers should realize that an employee who asks for time off to spend with a new child or to care for a spouse during cancer treatment has almost certainly provided a qualifying reason for taking job-protected FMLA leave. This means the employee must not only receive all of the required notices and paperwork, but must also be able to continue health insurance while on leave and be reinstated after the leave is over.
The FMLA allows employers to make employees follow the company’s usual notice requirements but only for the employer’s paid leave programs. When it comes to unpaid FMLA-protected leave, the employer can’t require more notice than the law allows. This issue often comes up when an employee needs FMLA leave for an emergency health issue and is unable to give advance notice. While the employee may have to follow the employer’s notice requirements to get paid for that time off, the employee’s right to unpaid leave is tied to the FMLA’s notice requirements (which are more flexible in emergency situations).
If, for example, you are in a car accident and need surgery right away, you (or a family member) can let your employer know as soon as practicable, and you will be on job-protected FMLA leave from the start. However, if your employer requires one week of notice to use paid vacation time, you won’t get paid for your time off until a week has passed since you gave notice.
Employees have a legal right to FMLA leave. However, employers have certain rights too. If you need leave for a foreseeable reason and you fail to give the legally-required 30 days’ notice, your employer may postpone the start of your leave. An employer may also ask you to make reasonable efforts to schedule foreseeable leave for planned medical treatment in a way that doesn’t unduly disrupt the company’s operations. Other than these exceptions, however, you have the right to take FMLA leave when you need it. If your doctor says you need dental surgery this week, your employer can’t force you to postpone the surgery or deny your leave request because it’s inconvenient.
Of course, employers may not fire employees for exercising their rights under the FMLA (although some do just that). However, more often, employers get into trouble when they discipline or otherwise punish employees for FMLA-related absences. For example, an employer might count an employee’s FMLA leave as an “unexcused” absence or as a point in a no-fault absence policy. Or, an employer might improperly count an employee’s protected time off against the employee in calculating seniority or discipline an employee for taking longer to complete work due to the employee’s protected leave.
You are entitled to continue your group health insurance coverage during your time off, as long as you pay your usual share of the premium. Some employers fail to continue benefits or cut employees off too quickly (before their grace period for paying the premium is up). Although employers don’t have to continue other types of benefits (like life insurance), they must reinstate those benefits immediately when the employee’s leave is over, with no waiting period or extra hurdles for the employee.
In general, employees on FMLA leave should not be performing any work-related tasks. However, an employer may periodically check in with an employee on leave, and even ask an occasional question about work. For example, if the employee’s replacement can’t find an important file or needs a few minutes of phone help to finish a task, the company can ask the employee to deal with that while on leave. However, an employer that asks too much or checks in too often has violated the law.
When your FMLA leave is over, your employer must immediately reinstate you to your former position or an equivalent position. Some employers delay reinstatement, but this is a mistake: Employees must be returned to their jobs on the day of their return, as long as they gave their employer at least two business days’ notice. And the position you are returned to must be the same in every important way to your former position, including pay, benefits, job duties, worksite, and so on.
Even after your FMLA leave is up, other laws might give you the right to additional time off. For example, the Americans with Disabilities Act gives employees with disabilities the right to a reasonable accommodation. In some cases, such an accommodation might be a little more time off, if you need it. Some states also have laws that give employees more time off than the FMLA. It’s your employer’s responsibility to give you the full benefit of all of these laws.
If your employer violates the FMLA, you should talk to an employment lawyer right away. There are strict time limits for bringing a claim—and time may be especially important if you need leave right away for a medical reason and can’t afford to lose your job or health benefits. A lawyer can help you figure out whether your employer is breaking the law and, if so, how best to assert your rights. To learn more, see our article on how to file an FMLA complaint.
