FMLA-Rules.com

The Family Medical Leave Act (the “FMLA”), passed by Congress and signed by the President in 1993, was the first national family and medical leave legislation in the United States. Prior to the enactment of the FMLA, employees may have had access to medical leave as the result of collective-bargaining agreements, employer policies, or state statutes, but such coverage was typically not as broad as coverage provided under the FMLA. Moreover, a large number of U.S. citizens completely lacked the ability to obtain medical leave prior to the enactment of the FMLA.

The FMLA requires certain employers with 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave per year to eligible employees who experience particular family or medical difficulties. For example, an employee who has a serious health condition may be entitled to obtain unpaid leave without having to worry about being fired. After returning to work the employee must be placed back in the same or equivalent position.

Employers are prohibited from interfering with, or denying, an employee’s right to take leave under the FMLA. Indeed, violations of the FMLA by an employer come with heavy consequences. Either an affected employee or the Department of Labor may be bring a lawsuit against the employer to recover damages equal to the value of any wages, salary, or benefits denied or lost to the employee because of the violation. Alternatively, if no wages, salary, or benefits were lost or denied to the employee, the employer may be liable for the employee’s expenses that occurred as a result of the violation, such as the cost of providing care, up to a limit of 12 weeks of wages or salary.

The damages recoverable by an employee or the Department of Labor under the FMLA may be further increased under the statute’s liquidated damages provision, which provides an additional amount of damages equal to the base amount of damages. This effectively doubles the employer’s potential liability. However, if the employer is able to satisfy a court that the FMLA violation was in good faith and that the employer had a reasonable basis for believing that it was not violating the FMLA, the court may disallow liquidated damages.

It is important to note that the federal regulations, agency interpretations, and court opinions construing FMLA leave are numerous and complex. The above summary of the FMLA cannot possibly address all the nuances of the law. If you have any question about whether an employee is entitled to FMLA leave in any particular instance, contact an attorney who practices employment law.

The information provided in this article does not create or constitute an attorney-client relationship, is not intended to convey or constitute legal advice, and is not a substitute for obtaining legal advice from a qualified attorney. You should not act upon any such information without first seeking qualified professional counsel on your specific matter.

For more valuable information about employment law issues faced by businesses and professionals, please visit the Business Litigation Update.

Author: M. Stamp
Article Source: EzineArticles.com
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The Family and Medical Leave Act which was enacted in the year 1993 have made a great difference on all American workplaces. This act provides for unpaid yet unpunished time off for the employees. But there are FMLA requirements that have to be considered before the act can even be considered as applicable to certain employees.

The Covered Employers

An FMLA covered employer is a person who is into any trade or industry and has 50 or more employees for every, single working day. He has to be in business with these employees for at least 20 or more workweeks during the current year or the one before it. For as long as this employer has more than 50 employees under his care, he is and will constantly be considered a covered employer. Other covered employers include public agencies, private elementary and high schools; but they are different because the FMLA requirements do not dictate a specific number of employees for them.

By law, the employer is the one who legally hires the employee for his services. Given this definition, a corporation is not considered as a number of employers but as a single entity. Integrated employers need to prove that they have common management; operations interrelation; and centralized relations on labor concerns before they can be considered as covered employers. They also have to have a degree of ownership or control over finances in the company.

The Covered Employees

The definition of the word employ as per FMLA regulations is more than the concept of the relationship between boss and worker. The broader meaning of the word means that an employee is one who depends upon the business which he serves. These are the people who are listed on the company payroll and who economically depend upon the business for their living.

The employees, simply put, become eligible for benefits from the FMLA if they have worked for a covered employer for one whole year; or if they have at least 1,250 hours during the 12 months prior to the leave. The best place for the employee to go to when he wants to know what the FMLA requirements are, would be the human resources department of the company that he’s working for. He could also check the United States Department of Labor website and find out what would qualify him to apply for unpaid leaves.

The FMLA implementation can be quite tricky but this is the very reason why there are FMLA requirements that guard the covered employers from abusive, malingering employees; and to guide the employees from employers who demand machine-like workers.

Know your rights. Learn more about fmla laws and fmla regulations by visiting our website today.

Author: Daniel M. Tolpert
Article Source: EzineArticles.com
Provided by: Guest blogger

The Family and Medical Leave Act (FMLA) requires covered employers to grant an unpaid leave of absence for employees who can’t work because they are ill, have a newborn child, or must care for family members who are ill.

Under the FMLA a covered employer (one who has 50 or more employees) must grant an eligible employee up to 12 weeks of unpaid leave during any 12-month period for one or more of the following reasons:

* for the birth and care of the newborn child of the employee;
* for placement with the employee of a son or daughter for adoption or foster care;
* to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
* to take medical leave when the employee is unable to work because of a serious health condition

The definition of “serious health condition” is rather lengthy but you may read it for yourself at the Department of Labor website: http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.114.htm

You will find a wealth of information at that site including FAQ and the actual regulations from the CFR (Code of Federal Regulations).

Employees become eligible for the FMLA benefit after working for a covered employer for one year and working at least 1250 hours during the 12 month period preceding the leave.

Once an employer has granted the 12 weeks required by law the benefits are exhausted for that 12 month period. In that case, in may be helpful for an employee to check with human resources, to see if there any other benefits available that would allow one to remain off work longer.

Rex Bush is founder of Bush Law Firm near Salt Lake City, Utah where he handles personal injury cases in Utah and throughout the United States and Canada. For more information on personal injury issues visit his website: Utah Injury Attorney.

Author: Rex Bush
Article Source: EzineArticles.com

Topics:

1. How are leaves covered under the FMLA and workers’ compensation statutes and how much time off is required?

2. When is a WC injury covered under the FMLA?

3. Should WC leaves be treated separately from other types of leaves?

4. Should the employer give the employee any special notification under the FMLA?

5. Does an employer have to pay for health insurance for an employee on WC leave?

6. Can an employee on WC leave be required to use vacation or sicK leave?

7. If the employee is released to light duty, can he be required to return to work?

8. Does the employer have to reinstate an employee returning from a WC leave?

9. Prevent Legal Headaches: Count WC Leave as FMLA

Implementing the FMLA can be tricky, especially when a leave of absence involves workers’ compensation injuries. This article answers some of the most common questions concerning workers’ compensation and the FMLA.

The Family and Medical Leave Act (FMLA) statute does not contain any direct reference to workers’ compensation injuries, and employers did not receive specific guidance on the topic until the April 1995 final regulations. However, since most workers’ compensation leaves are covered under the FMLA, an employer’s failure to treat these leaves as FMLA leaves can lead to inadvertent violations of the statute’s requirements. To help navigate the complicated legal maze of the FMLA and workers’ compensation, the Editors have identified eight frequently asked questions on this topic. The answers are based on analyses of the FMLA, its regulations, court cases, Department of Labor Wage and Hour opinion letters, and discussions with HR and legal experts.

1. How are leaves covered under the FMLA and workers’ compensation statutes and how much time off is required?

The FMLA is a mandatory federal leave law intended to protect employees who need to take time away from work to attend to certain family and medical problems. It applies to employers with 50 or more employees and all public agencies and schools and allows an eligible employee to take up to 12 weeks of job-protected leave for various family and medical reasons, including medical leave when the employee is unable to work because of a “serious health condition.”

Workers’ compensation (“WC”) statutes are primarily state liability and income continuation laws that protect employees who are injured while working. Almost every state has a law that guarantees an income (funded by employers and the state) to employees injured on the job and at the same time places limits on the employer’s responsibility for the injury. Benefits vary from state to state but typically include medical treatment, rehabilitation, disability, and wage continuation. WC statutes generally are not leave laws, however. Most states do not require employers to give a specific amount of leave for workers’ compensation, and only a few states require reinstatement from WC leave.

2. When is a WC injury covered under the FMLA?

If the employee is eligible for leave under the FMLA and the injury is considered a “serious health condition,” the WC leave should be treated under the FMLA. The FMLA defines serious health condition broadly to include any “illness, injury, impairment, or physical or mental condition that involves” either inpatient care or continuing treatment by a health care provider. The statute does not distinguish between work-related and nonwork-related injuries. Thus, any on-the-job injury that requires an employee to take leave to seek inpatient care or continuing treatment likely will be covered by the FMLA.

Accordingly, whenever an employee is injured on the job and needs time off to recover, the employer immediately should determine if the employee also is eligible for leave under the FMLA. If the employee is eligible for FMLA leave, the employer should notify the employee in writing that the leave is covered under the FMLA so that the leave time may be counted against the employee’s 12-week FMLA entitlement. If the employer does not run the WC leave concurrently with the FMLA leave, the employee may still have the full 12-week FMLA entitlement available to use after the WC leave.

3. Should WC leaves be treated separately from other types of leaves?

Some experts suggest that WC leaves be treated separately from all other types of leaves to ensure compliance with the requirements of state workers’ compensation laws. However, treating workers’ compensation as a totally separate category of leave may cause employers to inadvertently neglect the requirements of the FMLA.

4. Should the employer give the employee any special notification under the FMLA?

In order to deduct the time spent on WC leave from an employee’s annual FMLA leave entitlement, the employer must notify the employee in writing that the WC leave is designated as FMLA leave and will count against, and run concurrently with, the employee’s 12-week entitlement. The notice to the employee must detail the specific obligations of the employee while on FMLA leave and explain the consequences of a failure to meet these obligations. Most employers use the Department of Labor’s Form WH-381 to comply with these notice requirements. If the employer does not provide the notice, it cannot count the WC leave towards the 12-week FMLA entitlement. Therefore, the employee may be entitled to an additional 12 weeks of FMLA leave at a later date.

If the employee has been on WC leave without being placed specifically on FMLA leave, the employer should send notice to the employee immediately so that the FMLA clock starts running. However, the employer may then only designate the leave from the date written notice to the employee is provided. It cannot retroactively designate the time spent on WC leave against the FMLA entitlement.

5. Does an employer have to pay for health insurance for an employee on WC leave?

If the employee qualifies for FMLA leave and the employer normally pays for health insurance, the answer is yes. Although most state WC laws do not require employers to pay for health insurance during a WC leave, the FMLA requires the continuation of health insurance benefits during an FMLA leave. Typically, the state WC laws cover the employee’s medical costs related to the work injury but do not mandate continued coverage under, or payment for, a health insurance plan. However, under the FMLA, employers must provide the same health benefits during an eligible employee’s FMLA leave that it would have provided if the employee worked throughout the leave. Thus, if the employer normally pays 80% of an employee’s health benefits premium, it must continue to do so during the employee’s FMLA/WC leave.

6. Can an employee on WC leave be required to use vacation or sick leave?

The FMLA allows employers to require employees, or employees to elect, to substitute accrued vacation, sick, or other paid leave for all or part of the 12 weeks of unpaid leave. Employees on WC leave typically receive up to two-thirds of their normal pay as a wage benefit under state law. In recognition of this benefit, the FMLA regulations do not allow the use of paid leave if the employee is receiving workers’ compensation, even to make the employee “whole” or if requested by the employee. However, the employer may designate the leave as FMLA leave and count it against the employee’s 12-week FMLA entitlement.

7. If the employee is released to light duty, can he be required to return to work?

Most light duty positions do not include the employee’s normal job functions. Therefore, if the employee is unable to perform the essential functions of the job because of the work-related injury, he may continue to take any remaining FMLA leave and cannot be required to accept the light duty position. However, if the state workers’ compensation statute requires the employee to take the light duty assignment to continue receiving wage benefits, the employee’s WC benefits may be discontinued. The employee then must be allowed to use any accrued paid leave during the remaining unpaid FMLA leave.

8. Does the employer have to reinstate an employee returning from a WC leave?

If the employee is covered under the FMLA, he must be reinstated to the same or an equivalent position. The employee must be reinstated even if the employer did not notify the employee of coverage under the FMLA. If the employee does not return to work at the end of the 12-week FMLA leave, the employer may terminate the employee without violating the FMLA as long as the termination is consistent with the treatment of similarly-situated employees who have taken FMLA leave. However, the employee must have been properly placed on FMLA leave and notified that the time off for WC leave ran concurrently with the FMLA. In addition, a few state WC laws, such as Oregon, require reinstatement regardless of the length of the WC leave. As a further complication, the employee may be considered disabled under the Americans with Disabilities Act and, therefore, may be entitled to additional leave as an accommodation.

9. Prevent Legal Headaches: Count WC Leave as FMLA

Since most workers’ compensation leaves typically will be covered under the FMLA, employers should be prepared to comply with both laws. Failure to categorize a WC leave as a FMLA leave generally will not harm the employee as long as he gets all of the benefits of FMLA leave, such as continued health insurance and reinstatement rights. However, the employer may lose the opportunity to count the time on WC leave against the employee’s FMLA entitlement and may extend unnecessarily the employee’s FMLA leave eligibility. In addition, employers may violate the FMLA if they do not reinstate an employee from a WC leave that was not properly designated as FMLA leave.

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Author: Robin Thomas, J.D.
Article Source: EzineArticles.com

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With the down turn in the economy many companies are cutting cost in the biggest expense on their books, labor. So it’s not surprising that the question of FMLA and lay-offs would come up.
So can FMLA save me from being laid off?

The answer isn’t plain and simple.
If you are out on FMLA and your employer decided to lay off individuals you could be selected if you would have been selected if you had been working.
BUT if you employer decides to select you solely because you are on FMLA or have requested FMLA then you should consult an attorney, because your employer may have retaliated against you.
If you are on FMLA or have requested FMLA the thing you need to ask your employer is “Why was I selected?” If their response is that you are taking FMLA, you should contact an attorney.

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What is FMLA retaliation?

Simply put, FMLA retaliation is when an employee regrets taking Family Medical Leave due to the actions of his/her employer. An example would be; after an employee returns from medical leave the employer begins treating the employee differently than they did prior to the employee’s leave, by creating more work for the employee, calling the employee derogatory names, spreading rumors about the employee or discharging the employee for taking medical leave.

These types of cases are increasing throughout the US, and employers and employees need to know that this type of behavior is illegal and can lead to lawsuits. FMLA prohibits employers from taking any retaliatory action against an employee who takes FMLA. If you feel you have been retaliated against for taking FMLA you should contact an attorney to review your case, they can tell you if you have a claim and will likely walk you through the process of working it out.

Family Medical Leave is a federal law, so employers in all states must comply with it, though some states have other types of leave that also benefit employees.

What if you are injured on the job and need substantial time to recover, can you take FMLA for the time off even though you are getting Workers Compensation?


In most states, yes! If your injury is serious enough to be eligible for FMLA then you can take up to 12 weeks off to recover, and it won’t void your workers compensation.

Need an Employment Lawyer?

Most employers will require an employee taking FMLA to use their vacation and sick pay as part of FMLA, but some allow an employee to use their vacation THEN their unpaid FMLA time. Check with your employer to find out what their policy is on taking leave.

One question that I frequently get asked is “When should I seek legal advice?”

I started FMLA-Rules.com as a source for the common person to get free advice about their questions regarding the Family Medical Leave Act. My experience in Human Resources gave me the opportunity to provide that input to those in need. I am not an attorney and whenever I have a client ask that question I always tell them the same thing, “Whenever you feel you have been mistreated, go talk to your lawyer and see what they think.” Which is usually followed by, “can you recommend someone?”
The Family Medical Leave Act was enabled to restore rights to those individuals who needed to take time for their own serious medical conditions or those of a close family member, and that’s what it’s there for, so if you feel that you are being mistreated because of you are requesting FMLA or are out on FMLA consult with your legal council, if they feel you case has merit they will tell you.


As for the second part, due to the nation wide publicity that FMLA-Rules.com gets it would be difficult for me to recommend any one firm that would help, especially someone in your area, though recently I was checking out the legal match web site, they offer you help finding a lawyer in your area for free, and for me, free is the right price. When you are on your search for someone just be sure to find someone who specializes in employment law, they will have the best knowledge of the rules and regulations about FMLA and can best represent you for employment law.

Need an Employment Lawyer?

Question:
I was out on FMLA when I received notice that I was being laid off, can my employer do that?

Response:
If your employer based their decision to lay you off because you were on FMLA, then no they can not do that. But if you were included in a group of lay off’s and the criteria in which they used to pick individuals for lay off was one in which you would have been included if you were there, then your employer can in fact lay you off while you are out on leave.