5 Things Every Employee Should Know About Taking FMLA Leave

 

I’m an employee rights lawyer and I represent employees only in Florida and Georgia.  I get lots of questions about the the Family and Medical Leave Act of 1993 (FMLA), which is one of the most confusing workplace laws Congress has ever passed.

It’s a powerful tool you can use when you need time off for medical care – for yourself or for your family members themselves.  But it can be tricky, and employers haven’t made it any easier.

Here are some of my best tips for taking FMLA leave and for protecting yourself in case your employer isn’t happy about it.

  1. Use the official federal FMLA form to request leave. Never use an unofficial form created by your employer.  Here’s a link to the official form.  You can find it yourself online in a bunch of places.  Make sure the form is the  WH-380-E.  And never use a form created by your employer.  Why?  Some employers create their own version but secretly alter it, to allow them to snoop into your medical history and to change your rights in other ways. If your employer gives you anything other than the WH-380-E to submit FMLA requests, say thanks but no thanks and get your own  online.  Your employer cannot force you to use its altered version.
  2. You can apply for FMLA leave before you are technically entitled to it.  You’re not entitled to FMLA leave until you’ve been on the job at least a year, but you can apply for it before you’re eligible to take it.  Here’s an example.  Suppose you began working January 1 and it’s now October. You’ve just learned that you’ll need surgery in March, when you’ll be FMLA-eligible, but you aren’t right now. Can you still submit your FMLA forms now?  Yes.  Just fill them out and make clear the request is for time off in March, after your FMLA rights kick in.  Why do this?  Well, some employers don’t like it when they hear through the grapevine that an employee is going to be out for medical care, and they look for an excuse to fire the employee before the leave kicks in.  They might get away with it if you haven’t yet triggered FMLA protection.  Submission of FMLA papers gives you legal protection right now, even though you can’t take the leave until later.
  3. If you’re almost out of FMLA leave and still need more time off, request an “accommodation” under the Americans with Disabilities Act (ADA) before your FMLA leave ends so you can stay out without interruption. Many people, and many employers, don’t realize that employees on FMLA  may qualify for even more unpaid leave under the ADA, to begin once the FMLA leave has run out.  This is because the same medical conditions that qualify you for FMLA leave may also meet the definition of a disability under the ADA.  Congress loosened the definition of “disability” years ago and that term is interpreted very broadly.  So before your twelve weeks of FMLA leave is up, ask your boss or human resources for additional unpaid leave under the ADA.  It’s as simple as, “Hi, I am about out of FMLA leave and I will not be ready to come back before it ends.  Please accept this as my request for additional unpaid leave under the Americans with Disabilities Act.  I will need [insert length of time] of additional unpaid leave.”  Be sure you (1) mention the ADA, (2) use the word “accommodation” and (3) ask for a specific amount of time.   Never say you don’t know when you’ll be back. Some courts say your employer can fire you if the amount of leave you want is open-ended and undetermined.
  4. Check in from time to time while you’re out.  It’s a good idea to call or email your bosses and update them on your expected return date.  Even if the return date is already known, i still recommend checking it.  It will show your continued interest in the job, and allow you to gauge the temperature of your bosses.  Are things going smoothly?  Are there problems?   It’s just wise to keep abreast of anything in the workplace that might cause you problems when you return.  Most supervisors greatly appreciate the check-in.
  5. You’ve probably been the victim of illegal FMLA interference or retaliation if any of the following things happen.  Your rights may have been violated if (1) your employer refuses to allow you time off, or pressures you to delay your medical leave for long periods of time; (2) you’re fired on bogus or suspicious grounds shortly after disclosing the need for FMLA leave, or while you’re out on leave, or shortly after you get back; (3) your employer pushes you for highly-personal medical details, which the FMLA doesn’t allow; (4) your employer makes nonstop, ridiculous requests for more and more information and keeps rejecting your forms as a way of delaying or denying your FMLA leave; (5) your employer hassles you about taking intermittent, occasional FMLA leave; or (6) your employer harasses you about taking time off, or allows your coworkers to harass you because they’re having to help out in your absence.

If you have questions about your rights, reach out to a lawyer who is an expert in employee rights.  Ask the lawyer if he or she represents employees only – a good sign – or whether he or she also helps employers (a potentially bad sign).  The lawyer ought to be committed to protecting the rights of employees only.  An attorney who sometimes helps employers fight employees might not be committed to your cause.  Also ask the attorney about their specific experience in FMLA claims.  It’s a complex law, and you don’t want an attorney whose chief source of information rhymes with “oogle.”  If the lawyer can’t answer most of your questions without doing any research at all, you might look somewhere else.

Good luck.

Jim Garrity

Florida & Georgia Employee Rights Lawyer

Toll-Free: (800) 663-7999



Categories: Accommodations, ADA Retaliation, Family & Medical Leave Act Of 1993, FMLA Leave, Medical Emergencies, Unpaid Leave

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