The Family Medical Leave Act (FMLA)

Many people have a vague familiarity with the Family and Medical Leave Act (FMLA). It is an important and useful tool that many employees can take advantage of, and something that is often overlooked by employees. This article shares some of the basics of the FMLA. Feel free to share this information with friends or family members. Most of us will have a need some time in our lives to use this tool to protect our jobs.

The FMLA provides employees with up to 12 weeks of unpaid leave in a calendar year, with job protection. All public employers (i.e., government employers) of any size are covered under the FMLA, as are private employers with 50 or more employees. The employer must be “engaged in commerce or an industry or activity affecting commerce” under 29 U.S.C. § 2611(4)(A)(i).

For help with a work injury case, call our Certified Pennsylvania Workers’ Compensation Lawyers at Cardamone Law today at (267) 651-7945.

What Employees Are Eligible for FMLA Protections?

The FMLA applies to employees working for any public/government employers and any company with 50+ employees who work within 75 miles of each other, as long as that employer does some kind of commerce. This is merely the requirement for the federal legislation to have a hook since the federal government can only legislate things that involve interstate commerce.

As for specific employee eligibility, the law covers anyone who has worked at least 1,250 hours during the preceding 12 months and who has been employed for at least 1 year prior to the date that leave is requested. These 1,250 hours only include actual hours worked, not vacations or sick days. With a 8-hour workday/40-hour workweek, this would be the equivalent of about 31 1/4 workdays or 6 1/4 workweeks.

What Does the Family Medical Leave Act Allow You to Do?

The core purpose of the FMLA is to give covered employees access to 12 weeks of unpaid leave without being fired. Sometimes you just need a long term away from work to deal with issues in your family, and the FMLA allows that to happen without letting your employer fire you.

Often, the issue that you need to deal with in your family will be your own serious injuries, meaning that the FMLA has a lot of overlap with work injuries that might be the basis of a Workers’ Comp claim, which our Pennsylvania Workers’ Compensation lawyers can help you file.

What Types of Leave Are Covered Under the FMLA?

One of the most common ways people use the FMLA is to bond with their newborn or newly adopted child. The Act must be activated within 12 months of the birth or finalized adoption to qualify for FMLA protections. The other common issue is caring for a close family member with a “serious health condition” or if you suffer from a “serious health condition” yourself.

For your health condition to count, it has to render you incapacitated when it comes to performing your job. Often, injuries serious enough to warrant time away from work under Workers’ Comp will be serious enough to qualify for FMLA protections, potentially for the full 12 weeks.

FMLA Notice Requirements

If the leave is foreseeable, employees must give 30 days’ notice. This would likely apply if you know you have a baby on the way, giving your employer some additional time to reassign tasks and projects or hire a temp to cover your work.

If leave is not foreseeable, an employee must provide notice “as soon as practicable” under the circumstances.

Notice under the FMLA does not have to be in writing, nor does it have to specifically mention the FMLA in order to activate the protections of the FMLA. Even so, you should keep a good paper trail of any official requests like this, so it is best to make this request in writing and save a copy of your email or letter. Additionally, while you do not have to mention the FMLA, there is no reason not to. Being clear about the legal grounds for your leave can also make it harder for your employer to deny the leave or try to fight you on it when they know the FMLA’s effects.

What Types of Conditions Qualify as “Serious Health Conditions” for FMLA Leave?

Serious conditions like chicken pox, asthma, and pregnancy-related issues that impact a worker’s ability to perform their job functions should usually qualify. This analysis is done on a case-by-case basis and therefore depends on individual circumstances.

In any case, serious illnesses like a bad case of the flu or complications with covid should be sufficient to qualify for FMLA coverage. Additionally, many serious work injuries that keep you from being able to return to work right away will also qualify.

While you are out of work and receiving Workers’ Compensation for a work-related injury, the FMLA can often cover you for up to 12 weeks of your time away from work, but not beyond that.

As discussed, the birth of a new child will also typically qualify for FMLA, regardless of your employer’s maternity/paternity leave policies.

What Jobs Are Protected?

It isn’t exactly correct to say that “your job” is protected, given that your employer does not necessarily have to keep your exact position open. In most cases, this will be how it works, but the law’s requirements simply mean that the same or similar job must be available to you when you come back. This means you need to be doing the same kind of work with equivalent pay and benefits and other terms of employment, but it does not necessarily have to be the exact job you were doing before.

However, as we will discuss below, retaliation against an employer for using the FMLA is not allowed, and many transfers would qualify as adverse employment actions even if they only cause such minor effects as inconvenience or loss of status.

Can an Employer Retaliate if I Take Advantage of the FMLA?

Employers cannot “interfere with, restrain, or deny” an employee’s right to exercise FMLA protections. This means that they cannot fire you for requesting your unpaid 12 weeks, and they cannot do anything after you return to make you regret taking the leave, either.

Of course, some things like backed-up work and catch-up time are inevitable in some jobs, especially if your employer relied on you specifically for certain knowledge, client communications, or project tasks that they could not give to someone else. However, they cannot pile on additional work to make you regret taking your leave, and they certainly cannot transfer you or give you a lower-status position as punishment for taking FMLA leave.

If I Am on Workers’ Compensation, Can My Employer Count My Time Out of Work as FMLA Time?

An employer can decide on their own that your time away from work to deal with a work-related injury on Workers’ Comp should count as FMLA time if they provide you with written notice. This generally does not happen, but it may if certain requirements are met.

What this generally signals is that your employer is perhaps not-so-subtly pushing you to recover and get back to work within your 12-week leave. If you finish out the 12 weeks, but your injury still keeps you from working at that point, it is possible they may have to let you go and give the position to someone else who can currently work.

Is My Job Protected While I’m Getting Workers’ Comp Benefits?

Typically, Workers’ Comp does not protect your job, and this is an important distinction between Workers’ Comp leave and FMLA leave. If you are injured at work, the employer has no obligation to protect your job or keep the position open while they await your return. However, with the FMLA – assuming you meet the requirements, your job is protected during the 12-week leave period.

An employer cannot fire you because you filed a Workers’ Compensation claim, as that would be retaliation. However, they can couch your firing in other terms, such as “lack of work,” “excessive absence,” etc. So, an employer cannot retaliate against an employee for filing a Workers’ Comp claim, but unless the employee has a contract that says otherwise, an employer can fire you for just about any other legal reason so long as it’s not in violation of antidiscrimination laws or public policy.

When you come back from Workers’ Comp leave, you may be able to do some tasks, and your employer might be able to keep you on staff with reasonable accommodations. However, if you no longer meet the bona fide physical requirements for your job, it is possible they can offer you a different position or let you go. The fact that you took FMLA leave or that your injury was work-related will not make a difference; they can let you go if you cannot do the job anymore. However, you may still be eligible for Workers’ Comp benefits equal to 2/3 of your lost wages if you do return to work at a reduced working capacity or reduced income after a work injury.

Call Our Workers’ Comp Lawyers in Pennsylvania Today

For a free case evaluation, call Cardamone Law’s Philadelphia Workers’ Comp lawyers at (267) 651-7945.