For new parents, the excitement of pregnancy or an upcoming adoption can often be tempered by the unknowns of what lies ahead. How will you ever find the time you need to devote to your new family while also trying to keep your job and pay the bills? Fortunately, you may be covered by a federal law that will give you peace of mind at home and at work. We asked employment law specialist, Scott Abbott, Managing Partner of the Law Firm of Kamer Zucker Abbott, to teach us how this law may apply to you, your family members or even your employees.
The Family and Medical Leave Act (FMLA) is a Federal law that applies to certain covered employers, and ensures unpaid leave and job protections for eligible employees in the event of specified family and medical reasons. All Nevada state and local government employers are included in the definition of covered employers. Private companies are subject to the law if they have at 50 or more employees. Eligible employees are defined as those with at least 12 months of service at the applicable agency or company who have worked at least 1,250 hours in the last 12 months.
“It is important for employees to understand their rights under FLMA,” emphasized Attorney Abbott. First, eligible employees are entitled to 12 weeks of unpaid leave during a 12-month period. This can be for the birth of a child; to care for a newborn, adopted or foster child; to care for a spouse, child or parent who has a serious health condition; or because the employee has a serious health condition and is unable to perform his or her job. Additional leave is available to covered service members and families of military members.
Second, the employee has the right to have their group health insurance coverage continue during their absence. “Since by far and away the most frequent use of FMLA leave is due to an employee’s own serious health condition, this is an especially crucial benefit,” Abbott said.
Third, the employee has the right to job restoration or reinstatement to the same job or a substantially equivalent position. The Department of Labor’s Employee’s Guide to the Family and Medical Leave Act explains that this job protection is designed to eliminate the stress of worrying about keeping your job when you already have a difficult situation to contend with.
FMLA only applies to unpaid leave, and it is up to the discretion of your employer whether or not you have to first exhaust your accrued paid leave, such as vacation, sick and personal days, advised Abbott. “The employer must state this in a written policy in their employee handbook or manual, and publish their FMLA policy, along with a summary of employee rights and responsibilities, so the employee is not kept guessing,” he stated.
Some employees wonder if they wouldn’t be better off saving their FMLA unpaid leave as if it were a “rainy day fund,” Abbott commented. This is often an issue with government employees who have time-off benefits. They feel that they will never run out of paid leave, so they often want to save their FMLA leave. But the same protections that apply to government employees under FMLA may not apply with their paid leave absences. Even if an employee has the right to not use FMLA leave, and use up their accrued paid leave first, Abbott advised against it. “The employee may have the right to say that he or she does not want to use the FMLA unpaid leave, but the downside is that the employee may also lose the job protections that come with that FMLA leave, and could be subject to discipline or discharge.”
The US Department of Labor (DOL) oversees and enforces FMLA. “If an employee feels that they have a grievance about their FMLA leave or that they are not being treated fairly, they have recourse to file a complaint with the DOL,” Abbott advised. “They can also file a lawsuit alleging a violation of the FMLA, since there is no exhaustion-of-remedies requirement.”
The final important point to remember? “When an employee gets certification forms from the employer to fill out, it is very important to have the doctor or other healthcare provider fill out the forms completely and submit the forms in a timely manner,” emphasizes Abbott. “If your employer gives you a form to complete, make sure you do it, even if the doctor charges you a fee to have it filled out, because the employer needs to plan for your absence. All too often I see employees not being compliant with this important step in the FMLA process.” The prescribed forms are available on the DOL website.
The information provided is presented for general informational purposes only and does not constitute tax, legal or business advice. Any views expressed in this article may not necessarily be those of Nevada State Bank, a division of ZB, N.A.
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