50 Shades of FMLA – The Family and Medical Leave Act

Author: Mesriani Law Group
Posted on: May 5, 2020

Twice vetoed by President George H. Bush, President Clinton signed the Family and Medical Leave Act (“FMLA”) into law on February 5, 1993. The FMLA protects the jobs of employees during times they are needed to care for others.  It was born from the idea that being home after the birth of a child or having the ability to care for a sick relative is paramount to preserving the integrity of families. A person should be able to take time and to be with their family without the worry of losing their job.

If you are eligible for FMLA protected leave, you should have a job to return to once your leave is over. The FMLA lawyers at Mesriani Law Group will not only analyze whether you qualify for the protection the FMLA affords, this group of experienced FMLA attorneys will also ensure you get compensated for any violations your employer may have committed.

You may be eligible for this protected leave if you have worked for the same company for more than 12 months and worked at least 1250 hours during the previous 12-month period. 1250 hours come out to around 24 hours a week. So, even if your hours have been cut recently or you work part-time, you may still be afforded protected leave under the FMLA.

If you meet the 1250 hours and 12-month requirements, you will then need to determine whether the FMLA applies to your company. Most companies are covered, however the FMLA excludes companies who employ less than 50 persons.

What Protection Does the FMLA Provide You?

The FMLA provides workers time off to care for themselves or their close family members, without losing their benefits, and with the security of knowing their job will be there when they return.

The FMLA requires that companies allow up to 12 weeks of unpaid leave following childbirth, adoption, to care for a close sick relative, or to attend to your own health issues. While your employer can require you to burn accrued vacation leave, personal leave or family leave during this time, they need to give you this time off and allow you to return to your position after.

Also, during your FMLA leave, your company must continue to provide benefits. This means they must continue providing the same group health insurance benefits, including employer contributions to premiums, just as they would be required if you were not on leave. However, since you’re not earning a paycheck during your leave, you might have to pay your portion out of your own pocket.

Your Right to Return to Work

After your 12 weeks of leave, will you have your job? The presumption is yes, but of course there are exceptions! It is best to call an FMLA lawyer in the Greater Los Angeles area to determine whether your company is required to hold your job for you.

The general rule is upon returning from your leave, your company should restore you to your previous position. If that position no longer exists, they must place you in a substantially similar position, taking into consideration pay, benefits, and responsibilities. This is the standard; however, your employer can disrupt this standard if they can successfully assert that holding your position open would cause them Undue Hardship.

Undue hardship occurs when the company determines that denying you the position you held is necessary to prevent them from suffering substantial and grievous economic injury to their operations. This often occurs when “highly compensated employees” seek to take FMLA leave. A “highly compensated employee” is defined as “a salaried eligible employee who is among the highest paid 10 percent of the employees employed by the company within 75 miles of the facility at which the employee is employed.”

Essentially this means, if you are in a position so imperative to your company that holding your job while you are out would cause them undue hardship, then your company may be able to replace you while you are out on FMLA leave.

Aside from the 50-employee rule and 1250 hours + 12 months worked rules detailed above, FMLA does not apply to workers taking time for routine medical care, workers recovering from short-term illnesses (like the common cold), or to care for elderly relatives who are ill and are not your parents.

While FMLA is a federal law, California has passed a similar law modelled after the FMLA called the California Family Rights Act (“CFRA”).  The CFRA does have differences, one of those being an expanded definition of “family.” The CFRA includes domestic partners and the children of domestic partners as “family,” and provides protected leave to care for these individuals.

If you have taken FMLA or CFRA leave and feel you have been subjected to retaliation because of this, please reach out to the FMLA and CFRA attorneys at Mesriani Law Group.