The Family and Medical Leave Act of 1993 (FMLA) provides job protection for eligible employees for leave from work related to specific medical or family circumstances. Unfortunately, some employers are guilty of FMLA violations.
What Type of Leave Does the Family and Medical Leave Act Cover?
Family situations and medical conditions might require an employee to be out of work for several days or weeks. The FMLA protects employees from retaliation and wrongful termination for taking a protected leave of absence.
The FMLA allows the employee to take up to 12 weeks of leave during any 12-month period. The employer is not required to pay the employee during FMLA leave. Employees may also be eligible to take intermittent FMLA leave or work a reduced number of hours in specific circumstances.
Reasons for leave that the FMLA covers include:
- Complications from pregnancy
- Paternity and maternity leave
- Caring for an immediate family member (spouse, son, daughter, or parent with a serious health condition
- The employee has a serious health condition
Serious health conditions include injuries or illnesses that require continuing treatment by a medical provider or inpatient care. It also includes mental conditions, physical conditions, and impairments requiring inpatient or continuing health care.
Does an Employee Receive Health Insurance Coverage on FMLA Leave?
While an employer is not required to pay an employee for FMLA leave, employers must maintain an employee’s group health plan if the employee is a member before taking FMLA leave. Group health plan benefits include health insurance, disability insurance, and other benefits.
Cutting off insurance coverage or failing to continue insurance without providing adequate notice to an employee on family or medical leave would be an FMLA violation.
What Are the Qualifications for Leave Under the Family and Medical Leave Act?
An employee requesting FMLA leave must meet eligibility requirements. Requirements for FMLA leave include:
- Your employer has a minimum of 50 employees working within 75 miles of the workplace
- You have been employed by the employer for a minimum of one year
- During the year before your leave, you worked a minimum of 1,250 hours for your employer
If you are eligible for FMLA, the law protects your employer from taking certain acts against you based on your leave. For example, your employer cannot fire you because you requested and took FMLA leave. You cannot be demoted, overlooked for promotion, or have your wages decreased because you took FMLA leave. Employees are protected against most forms of employer retaliation because they took protected FMLA leave.
However, you must follow specific rules for the law to protect you. For example, you must give your employer notice of your leave and let the employer know why you need to take leave. If you take leave for the same reason, you must tell your employer that it is FMLA protected leave.
Your notice must be given at least 30 days before your leave if you are aware that you need to be out of work. Emergencies are an exception to the 30-day notice period.
What Should I Do if My Employer Violates My Rights Under FMLA?
The Family and Medical Leave Act is a federal law. The Wage and Hour Division of the United States Department of Labor enforces regulations under the FMLA. It investigates complaints filed by employees.
Employees may also file civil suits against their employers for FMLA claims. Any allegations of FMLA violations must be filed within two years from the date of the violation.
You can contact the Wage and Hour Division or a San Diego FMLA attorney. Generally, it is in your best interest to contact an employment lawyer immediately if you believe you have an FMLA claim. These claims are very fact-specific, and a lawyer can determine whether you have a valid claim.
Also, an attorney may suggest that you file a claim under the California Family Rights Act (CFRA). There could be advantages of filing a CFRA claim instead of an FMLA claim.
What is the California Family Rights Act?
The California Family Rights Act provides similar job protection for unpaid leave for medical conditions and family situations. The CFRA provides 12 weeks of unpaid leave per year. You are entitled to your same position and pay upon returning from protected leave, and your employer cannot retaliate against you for taking protected CFRA leave.
Employees must take leave under CFRA and FMLA concurrently. For example, an employee cannot take 12 weeks of FMLA leave, and then 12 weeks of CFRA leave.
A reason for filing claims under the CFRA is that the state statute provides expanded protections for employees. As of January 1, 2021, there were important changes to the CFRA that employees should know.
For example, the CFRA now applies to employers with five or more employees instead of 50 employees. It also covers employees who work for California state and local governments. Additionally, the worksite mileage requirement was eliminated.
The CFRA covers the same medical conditions and family circumstances that the FMLA covers, except the CRFA does not provide leave for pregnancy disability. The CFRA does cover bonding with a newly adopted or foster child, in addition to a new biological child.
The group of family members that the CFRA covers was expanded to include an adult child, grandparent, sibling, child of a domestic partner, and grandchild.
Both parents working for the same employer may not take 12 weeks of leave to bond with a new child instead of splitting the 12 weeks of leave.
There could be other protections that the CFRA has related to your case that might not be covered by the FMLA. By seeking legal advice from an experienced San Diego FMLA claims lawyer, you can learn about your options to choose the best way to recover damages because of an FMLA violation.
Contact Us for a Free Consultation with a San Diego Employment Lawyer
Family and medical leave laws can be confusing. If you believe you have been discriminated against or wrongfully terminated because you took protected leave from work, do not hesitate to talk with a lawyer.
Likewise, contact an attorney if you believe your employer is violating the law by denying protected leave under FMLA, CFRA, or other federal or state employment laws. The first step in protecting your rights as an employee in California is to know your rights.
Do you have questions about Family Medical Leave Act claims or other employment matters? Call our law office at (619) 693-7727. to schedule a free case review with one of our experienced employment lawyers in San Diego.
