By Alfredo Nava, Jr., Esq.
March 9, 2014
The Family and Medical Leave Act (FMLA) was passed during the Clinton administration, affording new rights to medical leave previously unavailable to most Americans. California also passed its own version of the FMLA, known as the California Family Rights Act. Many misconceptions surround the FMLA. For example, many employees believe it is a law meant to protect the rights of pregnant women. However, the FMLA and CFRA provide protections to all employees if they meet certain eligibility requirements. The FMLA and CFRA both require that an employee should have worked a minimum of 1,250 hours in the previous 12 months. In addition, the employer must have a minimum of 50 employees in a 75-mile radius.
Once an employee meets these eligibility requirements, an employee would be entitled to protected leave for 12 weeks each year for his or her own serious health condition or that of an immediate family member. The regulations of the FMLA are broad enough to encompass most chronic illnesses that require regular doctor visits on an intermittent basis or even emergency visits if they require hospitalization for a minimum amount of time. Specifically excluded are minor sprains and other minor ailments like the common cold.
Once the employee is able to meet all these eligibility requirements, the FMLA regulations require extensive written notices about the rights and obligations of an employee, up to and including any certification requirements it may impose on the employee. More importantly, failure to provide these notices may constitute interference of FMLA leave if an employee is able to demonstrate that there is a nexus to an adverse action. Once an employee demonstrates that he or she is entitled to FMLA protection, he or she cannot be discriminated against in terms of employment, laid off, transferred, or terminated for the exercise of his or her rights. A common example is if an employee loses seniority rights because of the FMLA leave. Thus, a company policy that indirectly penalizes an employee for the exercise of his or her FMLA rights would also be a violation of the FMLA.
It is extremely important to immediately consult with an attorney if you believe that your rights are being violated. Employers commonly evaluate the seriousness of the health condition without following the certification requirements under the FMLA regulations. By doing so, they detrimentally affect the rights of employees and force employees to make a choice between their health and their jobs. The attorneys of JML Law understand and have successfully prosecuted cases against some of the biggest corporations in the country for violating the FMLA rights of employees.
If you have any questions about the FMLA or CFRA, or how these laws can protect you in light of your particular situation, we invite you to call the attorneys of JML Law, A Professional Law Corporation, to schedule a free consultation.