Family Medical Leave Act

Article written based on Pennsylvania and Federal Law

In 1993 Congress passed and the President signed into law the Family and Medical Leave Act. The purpose of this law is to balance the needs of the workplace with the needs of families. It allows employees to take reasonable leave for medical reasons, for the birth or adoption of a child, for the care of a child, spouse, or a parent who has a serious health condition.

To be eligible under this law you have to employed for at least twelve months from the employer you wish to take the leave. And generally your employer must have at least 50 employees working for him or her in order for you to be able to take leave under this law.

If you qualify under this law you are entitled to take a total of twelve workweeks of leave during any twelve period for any one of the following:

  1. the birth of a child and care for your newborn child;
  2. the placement of a child for adoption or foster care;
  3. to care for your spouse, your child or a parent if they have a serious health condition; or
  4. a serious health condition which prevents you from performing the functions of your position.

The amount of leave you take under the Family and Medical Leave Act can be taken intermittently or on a reduced schedule if your employer and you agree to it. But the total amount of leave available to you cannot be reduced to under twelve weeks. If you take intermittent leave the employer can transfer you, temporary, to another position provided that the new position has the equivalent pay and benefits and better provides for your leave. But if you and your spouse work for the same employer both of you cannot take twelve weeks of leave each. You must generally split the twelve weeks between both of you.

Generally, leave under the Family and Medical Leave Act is non-paid leave. Your employer can offer some paid leave, but they are not required to do so. You, or your employer can require you to, use your accrued paid vacation time, personal time or medical/sick leave during your twelve week leave.

If you know that you are going to require leave for the birth or adoption of a child you must notify your employer 30 days in advance of the leave, if practicable. Also you have to make a reasonable effort to schedule medical treatment (if you are taking leave for a serious health condition) so it will minimize the disruption to the employer, if at all practicable. And when you are on your leave your employer can require you to state your intentions on whether you intend to return to work.

If you are taking leave for a medical reason, your employer can require you to have medical certification issued by a health care provider. If your employer wishes, at the employer’s expense, they can have a second opinion issued on the medical reasons for your leave. If your medical certification and your employer’s second opinion differ, your employer may require you, at your employer’s expense, to submit to another opinion from a health care provider. This third opinion from a health care provider, chosen by you and your employer together, is binding on both of you. Your employer can also require subsequent additional medical certifications on a reasonable basis.

When you are out on leave under the Family and Medical Leave Act your employer must maintain your health benefits under any group health plan for the duration of your leave. If, however, you fail to return to work after your leave you may be required to reimburse your employer for these benefits. You are not required to pay for these benefits if your failure to return is a result of circumstances beyond your control or because of the continuance of a serious medical condition. You do not however, accrue seniority or other employment benefits during your leave.

When you return from your leave you must be restored to your former position or a equivalent position. The exception to this rule is if you are a highly compensated employee. If you are a highly compensated employee and your employer does not wish to reinstate you, your employer can refuse to do so if reinstatement causes substantial economic injury to the employer.

If an employer interferes with the rights of the employee or discriminates against an employee for asserting his or her rights under this law, an employee can sue the employer. An employee can recover either money damages or can require the employee to reinstate the employee. If the employee requests money damages he or she can receive money equal to the amount of wages, salary and benefits lost for violation of this law plus interest paid on this lost compensation. The employee can also recover liquidated damages equal to the amount paid in lost wages, salary and benefits if the court believes the employer did not violate this law without reasonable grounds. The employee, if he or she wins her lawsuit, can also require the employer to pay reasonable attorneys’ fees and costs of the lawsuit.

Author: Richard E. O'Neill, Esq.

The O'Neill Law Office Norristown, PA (610) 635-5555

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