The purpose of this article is to provide general information on employment law and to increase awareness of your rights. This information is not intended to replace the advice of your attorney. If any of these issues apply to you please seek the advice of counsel immediately.
Under the Family and Medical Leave Act of 1993 (FMLA), which went into effect on August 5, 1993, your employer must grant you up to 12 weeks of unpaid leave annually:
- for the birth or adoption of a child;
- for the care of a spouse, child or parent with a serious health condition; or
- because you’ve become unable to work due to a serious health condition.
What constitutes a serious health condition?
A health condition includes an illness, injury, or physical or mental condition that requires an overnight stay in a hospital or ab absence of more than three calendar days of work, school or other regular activities. The health condition also includes the continuing treatment by a health care provider. In order to establish that you have a serious health condition you may be required to submit medical certification of your condition.
Limits to the law
The Family and Medical Leave Act does not apply to every worker; it applies only if you work for a company of 50 or more local employees, and you must have been on the job for at least 12 months and have put in at least 1,250 hours in the year preceding the leave. Even within those parameters, there are further limitations. The law allows companies to exempt the highest paid 10% of employees. If you and your spouse happen to work for the same employer, you will get only one 12-week period to split between you. Additionally, companies do not have to provide leave to employees in an area where there are fewer than 50 employees in a 75?mile radius. In other words, a small regional office of a large company may be exempt.
How It Works
If your spouse, parent or child has an illness or injury that qualifies you to take leave, your employer must grant you leave. The company can’t deny you leave simply because it feels someone else could take care of your family member. For a new child, you must take the leave all at once (unless your employer agrees to a different arrangement). For medical problems, you may be able to work out a more flexible arrangement if your doctor certifies the necessity. That means you may be able to take a day or a week when needed, or reduce your work week or workday as necessary. Your employer can, however, count your accrued paid vacation, sick leave and personal leave days toward the 12 weeks of family leave. Though some employers may allow you to take your paid leave as part of your unpaid family leave, they aren’t required to.
Insurance while you’re on leave
You do not qualify for unemployment insurance during your leave. There are five states (California, Hawaii, New Jersey, New York and Rhode Island) and Puerto Rico offer temporary disability insurance, which provides you with a percentage of your income during your own medical leave. Employers covered by the law must maintain your health coverage during the leave period and, once the leave period is concluded, must reinstate you to the same job or an equivalent job. If you go on leave and decide not to return to your job, your employer may ask you to reimburse the cost of health benefits paid during the leave.
State and individual variations of family leave
Be aware that some companies offer family-leave policies that are more generous than those required by the FMLA. Ask your personnel department for a copy of your company’s family-leave policy. For more information regarding the family-leave laws in Texas you may check with the Department of Labor, either or state or federal and determine which offers greater benefit. As a general rule state laws are generally more liberal than the federal law, in some cases allowing longer leave periods or broader definitions of serious illness. However, in many states, an employer is free to deny an employee’s request for leave if the time off would cause undue hardship to the employer.
If, unable to deny you the leave, the company fires you instead, you may be able to sue to get reinstatement, lost wages, and attorney’s fees. Seek the service of a lawyer experienced in employment law in your area.