Articles Posted in Family & Medical Leave Act (FMLA)

Q. What types of medical leaves are protected under the FMLA?

A. Covered employees can take medical leaves for a “serious health condition.” The definition of a serious health condition is complicated, but it includes most conditions that either:

1. Require an overnight hospital stay, or
2. Last more than three days, and (a) require more than one doctor’s visit, (b) require at least one doctor’s visit and continuing treatment such as physical therapy or prescription medication, or (c) are chronic, and involve extended periods of incapacity or treatment.

Q. What types of family leaves are protected under the FMLA?

A. The Family & Medical Leave Act (“FMLA”) allows eligible employees to take time off to care for an immediate family member who has a serious health condition. Depending on the circumstances, this can include helping take an immediate family member to a doctor’s appointment, helping care for them at home, or providing them comfort and support needed because of their serious health condition.

Q. Who is considered an “immediate family member” under the FMLA?

A. An immediate family member means your spouse, parent, or child.

Q. Does the FMLA give me the right to take time off while I am pregnant?

A. Expecting mothers can take time off if they have a pregnancy-related condition or complication that meets the FMLA’s definition of a serious health condition.

Q. What types of maternity and paternity leave are available under the FMLA?

A. New parents can take a maternity or paternity leave to bond with their new child during the first 12 months after birth or adoption of a child, or for the placement of a foster child.

Q. Do I have to take all of my FMLA leave at the same time?

A. Not necessarily. Under certain circumstances you can take an FMLA leave “intermittently” or on a “reduced leave schedule.” An intermittent FMLA leave is when you take off blocks of time. A reduced leave schedule is when you use the FMLA to reduce the number of hours you work per week or per day, such as taking time off for doctors’ appointments or physical therapy.

Last week, we answered Frequently Asked Questions about FMLA Basics. Next month, we will discuss Frequently Asked Questions about Requesting an FMLA Leave, and Reinstatement and Remedies under the FMLA.

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Q. What is the Family & Medical Leave Act?

A. The Family & Medical Leave Act of 1993 (FMLA) is a federal law that allows covered employees to take protected time off for certain family and medical leaves.

Q. Which employees are protected by the FMLA?

A. To be protected by the FMLA, an employee must have (1) worked for the same covered employer for the past 12 months, (2) worked at least 1,250 hours (an average of 25 hours per week over 50 weeks) for that company over the previous 12 months, and (3) worked in a location where there are at least 50 employees working for the employer within 75 miles.

Q. Which employers are covered by the FMLA?

A. States, and most companies and government agencies with at least 50 employees are covered by the FMLA. However, government agencies and States Cannot Be Sued for Violations of FMLA Relating to Self Care Medical Leaves. They can be sued only for violations relating to family leaves.

Q. How much time off am I entitled to take under the FMLA?

A. Eligible employees can take up to 12 weeks off in a 12 month period for a qualifying medical leave, family leave, or maternity/paternity leave.

Q. Am I protected under the FMLA if I am not planning to return to work after my leave?

A. No. If you tell your employer that you do not plan to return to work at the end of your FMLA leave, then your employer is not required to grant you an FMLA leave. Accordingly, your employer has the right to periodically ask you if and when you expect to return to work.

Q. Will I Continue to Receive Health Insurance From My Company During My FMLA Leave?

A. Yes. Your company must continue your coverage under any group health plan during your FMLA leave, with the same conditions that would have applied if you had not taken the leave.

In our next article, we will answer Frequently Asked Questions about What Types of FMLA Leaves are available under the FMLA. In future articles, we will discuss How to Request an FMLA Leave, and the right to Reinstatement and Legal Remedies available under the FMLA.

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Last month, the United States Supreme Court ruled that the “self-care” provisions of the Family & Medical Leave Act of 1993 (FMLA) cannot be enforced against a state, unless the state consents to being sued under the FMLA. The FMLA is a federal law that guarantees eligible employees the right to take up to 12 weeks off per year due to their own serious health condition (medical leaves), or due to a serious health condition of their spouse, parent, or child (family leaves). Under the Supreme Court’s decision, the FMLA’s family leave provisions still apply to states. However, the FMLA no longer requires states to permit their employees to take time off for their own medical conditions.

The basis for the Supreme Court’s decision is the 11th Amendment to the United States Constitution, which declares the states to be sovereign, and limits the federal government’s right to create laws under which states can be sued. The 14th Amendment, which forbids the states from denying equal protection of the law to anyone, provides a limited exception to the States’ sovereign immunity. In the context of federal laws like the FMLA, which are intended to protect against gender discrimination, that exception only applies if the law is intended to correct a well-documented pattern of gender discrimination.

In Coleman v. Court of Appeals of Maryland, the Supreme Court recognized that when Congress passed the FMLA, it had strong evidence that states were discriminating against women based on sex with respect to their family-leave policies. It therefore had previously recognized that the FMLA’s family-leave provisions do apply to states. However, Coleman concludes that Congress did not have enough evidence of gender discrimination with respect to medical leaves for an employee’s own serious health to justify applying those provisions of the FMLA to states. It reached this conclusion even though Congress apparently intended the FMLA’s medical leave provisions to protect women with pregnancy-related illnesses, but in a way that did not discriminate against men by protecting all medical leaves, and not just leaves for pregnancy-related conditions.

The Supreme Court’s ruling does not merely mean that the FMLA’s self-care provisions are unenforceable against states like New Jersey and New York. It also applies to subdivisions of the state, such as towns, cities, boroughs, villages, and other municipalities. It also applies to and municipal police departments, fire department, schools districts, and other state and local government entities. However, it does not eliminate protections against pregnancy or disability discrimination committed by state and local government provided by other laws such as the American’s with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), the New Jersey Law Against Discrimination (NJLAD), New Jersey’s Family Leave Act (NJFLA), the New York Human Rights Law (NYHRL), and the New York City Human Rights Law (NYCHRL).

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The Family & Medical Leave Act of 1993 (FMLA) is a federal employment law that, among other things, permits covered employees to take up to 12 weeks off per year because of a serious health condition. Employers are required to inform their employees about their rights under the FMLA within 5 days after they request time off for a leave that is covered by the FMLA. For example, an employer must tell an employee that she is guaranteed the right to return to her job if she returns from her medical leave within 12 weeks.

Earlier this year, in Antone v. Nobel Learning Communities, Inc., Judge Joseph E. Irenas of the United States District Court for the District of New Jersey recognized that an employer can violate the FLMA if it fires an employee because she failed to return to work from an FMLA leave within 12 weeks if:

1. The employer did not tell the employee when her FMLA leave expired, and
2. The employee would have returned to work within 12 weeks if the employer had provided her the proper information.

The plaintiff in that case, Karen Antone, had numerous health issues including Cellulitis, low cranal spinal fluid, chronic headaches and migraines, and complications from vascular surgery. On May 28, 2009, she requested a leave of absence so she could receive medical treatment. When she filled out an FMLA certification form, Ms. Antone’s physician indicated that she expected to return to work on August 28, 2009. However, August 28, 2009 was 12 weeks and 8 days after Ms. Antone started her FMLA leave.

Nobody at Nobel told Ms. Antone that the FMLA only guaranteed her right to return to her job for 12 weeks, or that she had to return to work by August 20 to be guaranteed her job back under the FMLA. Rather, the company waited until late August, and then fired Ms. Antone because her doctor had not cleared her to return to work by August 20.

Ms. Antone then filed a lawsuit alleging that Nobel had interfered with her rights under the FMLA by failing to reinstate her to her job at the end of her FMLA leave. The company sought to dismiss her case, arguing that Ms. Antone was not protected by the FMLA because she took more than 12 weeks off. But Judge Irenes denied the motion based on the fact that Ms. Antone alleges she would have returned to work by August 20 if she had known that was her deadline, and that the last 8 days of her medical leave were just a precaution. In fact, her doctor indicated that he would have cleared her to return to work on August 20 if he had known she was entitled to take only 12 weeks off.

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Last week, the Third Circuit Court of Appeals< (the federal appellate court that covers New Jersey) ruled that supervisors can be held personally liable under the Family & Medical Leave Act of 1993 ("FMLA"). Employees who are covered by the FMLA have the right to take up to a total of 12 weeks off per year for their own serious health condition; for a serious health condition of their spouse, parent or child; for childbirth, adoption, or foster care; or to bond with a new child.

In Haybarger v. Lawrence County Adult Probation and Parole, the Third Circuit ruled that individuals who have sufficient control over an employee can be held personally liable if they violate the employee’s rights under the FMLA. The Court indicated that relevant factors a court should consider when determining whether an employee can be held personally liable under the FMLA include whether the individual (1) had the power to hire and fire the employee, (2) supervised and controlled the employee’s work, (3) set the employee’s compensation, or (4) maintained employment records for the employee. In addition to these factors, courts must consider any evidence that is relevant to determine the “economic realities” of the relationship between the employer and the employee. The Third Circuit also rule that this test applies to both public and private employers.

The plaintiff in the case, Debora Haybarger, worked as an office manager for Lawrence County Adult Probation and Parole. She frequently needed to take time off because of medical conditions including Type II diabetes, heart disease, and kidney problems. Her supervisor, William Mancino, made it clear he was unhappy that she was taking so much time off from work. He eventually placed Ms. Mancino on probation for six-months before he convinced his boss, Judge Dominick Motto, to fire her.

The District Court dismissed Ms. Haybarger’s claims against Mr. Mancino. It primarily relied on the fact that Mr. Mancino did not have the ultimate authority to fire Ms. Haybarger. But, applying its new test, the Third Circuit concluded that there is enough evidence for a jury to conclude that Mr. Mancino can be held personally liable under the FMLA. Among other things, it noted that he supervised Ms. Haybarger’s work, prepared her performance reviews, disciplined her, and influenced Judge Motto’s decision to fire her. Accordingly, it reversed the District Court’s decision so a jury can decide whether Mr. Mancino can be held personally liable for violating Ms. Haybarger’s rights under the FMLA.

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On May 5, 2011, New Jersey’s Appellate Division ruled that employers do not have the right to force employees to complete Family Medical Leave Act (FMLA) medical certifications, or to require employees to take FMLA leaves. The FMLA is a federal law that permits qualified employees to take up to 12 weeks off per year for (1) their own serious health condition, (2) the serious health condition of their spouse, son, daughter, or parent, (3) their own pregnancy, or (4) the adoption, or placement of a child in foster care.

The case, In the Matter of Township of Parsippany-Troy Hills, involves an employee who wanted to use paid sick leave instead of taking an unpaid FMLA leave when he took a family leave to care for a sick relative. His employer, the Township of Parsippany-Troy Hills, asked him to submit a FMLA certification form from his health care provider, and threatened to suspend him after he refused to submit the form.

The Appellate Division concluded that the FMLA does not permit an employer to force an employee to submit an FMLA medical certification, and therefore it is improper for an employer to discipline an employee because he refuses to submit one. Furthermore, if the employee is entitled to take the same time off under another employment policy or a union collective bargaining agreement, then the employer must grant the employee but the employee will not be protected by the FMLA.

The Appellate Division also ruled that if an employee refuses to provide enough information for the employer to determine whether his leave qualifies under the FMLA, then the company can deny the employee’s request for an FMLA leave on that basis. That is because the employer does not have enough information to determine whether the leave qualifies under the FMLA due to the employee’s refusal to provide enough information. So, for example, if the employer asks the employee to submit an FMLA medical certification, and the employee refuses to do so, then the employer can deny the employee’s request for an FMLA leave.
In reaching those conclusions, the Appellate Division explained that companies covered by the FMLA must give employees four different forms of notice about their rights under the FMLA:

1. General Notice: Employers must post general notice of the FMLA’s provisions and the procedures for filing a complaint for a violation of the FMLA in a conspicuous location, and include it in any employee handbooks or other written policies provided to employees;
2. Eligibility Notice: When the employer becomes aware that an employee’s time off might qualify under the FMLA, the employer must tell the employee whether he is eligible to take an FMLA leave based on his length of employment and the size of the company;
3. Rights and Responsibilities Notice: When an employee requests an FMLA-qualifying leave, or the employer has enough information to know the employee’s leave might qualify under the FMLA, the employer must tell the employee about his rights and responsibilities under the FMLA, and the potential consequence if he fails to meet those obligations; and
4. Designation Notice: Once an employer has enough information to determine whether an employee’s requested leave qualifies under the FMLA, it must inform him whether it qualifies.

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Among other things, the Family & Medical Leave Act (FMLA) allows covered employees to take off up to 12 weeks from work per year to care a newborn, newly adopted or placed child, or to care for a son or daughter with a serious health condition. However, the FMLA does not indicate whether someone who provides care for a child, but is not the child’s biological or legal parent. Among other situations, this arises in same sex marriage and civil union in which only one person is the child’s legal parent or guardian.

To answer this question, on June 22, 2010 the United States Department of Labor (DOL)’s Deputy Administrator issued a formal interpretation of the term “son or daughter” under the FMLA. The DOL indicated that someone is an employee’s son or daughter if they provide either financial support or day-to-day care for the child.

The DOL reached this conclusion because the FMLA defines “parent” to include someone who acts “in Loco parentis.” Someone acts in Loco parentis if they fill the normal obligations of a parent, but are not the child’s biological or adoptive parent. Someone who acts in Loco parentis is entitled to take an FMLA to take care of the child.

The DOL provided an example that an individual who provides day-to-day care for his or her partner’s child could be considered the child’s parent under the FMLA, even if he or she has no legal or biological relationship to the child. It also indicates that this can be true irrespective of whether the child has a biological parent in their home, or already has both a mother and a father.

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Last week, I discussed the Third Circuit’s recent decision regarding when time worked from home counts toward the Family & Medical Leave Act (FMLA)’s 1,250 hour eligibility requirement. The same case, Erdman v. Nationwide Insurance Company, also addresses whether an employee who requests but does not receive an FMLA leave is protected by the FMLA.

The FMLA has two separate provisions, one that prohibits employers from interfering with an employee’s FMLA rights, and another that prohibits employers from retaliating against employees. The FMLA’s interference with rights provisions prohibit employers from (1) interfering with, restraining, or denying the exercise of or attempt to exercise, any right provided by the FMLA; and (2) discharging or in any other manner discriminating against any individual for opposing any practice made unlawful by the FMLA. In contrast, to establish a retaliation claim under the FMLA, an employee must prove that (1) he is protected under the FMLA; (2) he suffered an adverse employment action, such as being fired, demoted, or suspended, and (3) the adverse employment action was caused by the employee’s exercise of his FMLA rights.

The Third Circuit noted that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins.” In other words, the Court has no doubt that employees are protected by the FMLA when they request FMLA leaves, even if they never actually take an FMLA leave. The court concluded that, depending on the circumstances, firing an employee for making a valid request for FMLA leave can constitute either an interference with the employee’s FMLA rights, unlawful retaliation, or both.

On September 23, 2009, in Erdman v. Nationwide Insurance Company, the United States Court of Appeals for the Third Circuit discussed when an employee’s time working from home counts toward the 1,250 minimum hours required for an employee to be covered by the Family & Medical Leave Act (FMLA). The Third Circuit is the federal appellate court that includes New Jersey. The FMLA is a federal employment law that permits qualified employees to take time off from work to care for their own serious medical conditions, the serious medical conditions of members of their immediate family, for pregnancy, childbirth, adoption, or foster care, or to care for a new child.

The employee in that case, Brenda Erdman, has a daughter with Downs Syndrome. In 1998, Ms. Erdman’s employer, Nationwide Insurance Company, permitted her to work part time so she could care for her daughter. Ms. Erdman worked part time for four years, when she switched to a four day work week.

Ms. Erdman worked nearly 1,300 hours for Nationwide Insurance during the year at issue, including more than 100 hours that she worked from home. She had previously worked from home for Nationwide for many years. Nationwide consistently either paid her for working those hours, or allowed her to use the time as “comp” time.