5 FMLA Tips

5 FMLA TipsDenied FMLA Leave

Over the last year, we’ve represented employees who had claims under both the Family Medical Leave Act and the California Family Rights Act. The FMLA, the Family Medical Leave Act, is the federal statute; the CFRA, the California Family Rights Act is basically California’s version of the FMLA. We’ve had cases in which we represented employees who are current employees of an employer, and that employer violated the CFRA or the FMLA because they refused to provide leave under the CFRA or the FMLA or failed to compensate the employee while they were out in a manner which was consistent with the CFRA or the FMLA.

More often than not, unfortunately by the time they contact the firm, it’s a situation in which the employer has received notice that the employee needs leave, and the employer simply denies the leave and terminates them, or the employee requests the leave, is denied, and then the employee has no other option but to quit.

Both the FMLA and the CFRA protect employees that qualify to have up to 12 weeks of leave per year. You’re entitled to the same position that you had at the time that you took the leave, and you’re also entitled not to be retaliated against for taking the leave. If you feel that you’ve been retaliated against or if you feel that your rights have been interfered with, as it relates to either the FMLA or the CFRA, it’s important for you to talk to an attorney that can answer your questions.

Important Things to Know About FMLA

The FMLA is actually a federal statute, and it protects employees who become disabled or need to take medical leave either for themselves or for a family member. There’s specific requirements as to who’s eligible to take leave under FMLA and how long that leave is available.

While many people actually call the office regarding FMLA leave, for the most part we actually don’t ever file a claim under FMLA. We actually file claims, typically, under the CFRA, the California Family Rights Act. The CFRA is California’s version of the FMLA. There’s various reasons why we file claims under the CFRA and not the FMLA. The CFRA provides the same type of protection as the FMLA. It actually covers more disability and more conduct than the FMLA does. It also allows us to file claims within state court, rather than having to file a claim in federal court.

A lot of times when employees take leave under the CFRA, they take 12 weeks of leave. At the end of the 12 weeks of leave, their employer tells them that they’re on unprotected leave and that they can be terminated for any reason because they burned through their 12 weeks of FMLA leave. Our firm spends a lot of time litigating issues as to what protections an employee has, once that employee goes through 12 weeks of leave. A lot of times employers are just simply incorrect. The fact that you’ve actually used 12 weeks of leave under the CFRA doesn’t mean that your continued leave is unprotected.

There’s another area of the law called the Fair Employment and Housing Act, FEHA. FEHA also requires an employer to provide additional leave beyond 12 weeks, if that employee needs it as a form of reasonable accommodation, and it doesn’t require an undue burden upon the employer.

If you’ve taken leave or you have questions regarding leave, or you’re at a point where you’ve actually gone through your 12 weeks of CFRA leave or FMLA leave, and you still need additional leave, and the employer isn’t willing to give it to you, or you have any questions with regard to leave, it’s important that you find an attorney that can answer those questions for you. It’s important for you to find an attorney that’s litigated both FMLA claims, CFRA claims and FEHA to make sure those questions are answered.

FMLA Eligibility

Here at the firm, we get a good number of calls regarding employees that have had to take leave away from their employer and whether or not they’re entitled to take medical leave under the FMLA. We spend a good amount of time identifying how big the employer is and how many hours the employee worked in the last year. In order to qualify for leave under the FMLA and California’s CFRA, the California Family Rights Act, you have to work for an employer that has more than 50 employees in a 75 mile radius, you have to have worked for more than a year, and you have to have worked more than 1250 hours over the past year. If you worked for the employer for more than a year and you worked for more than 1250 hours over the past year, and they have more than 50 employees in a 75 mile radius, then you’re arguably entitled to leave under the Family Medical Leave Act and the California Family Rights Act.

Those are all pretty fact-specific questions. Are there 50 employees in a 75 mile radius? Sometimes you’ve worked for two employers; you worked for a temp agency for nine months, and then you got hired on and you’ve worked for your current employer for ten months, but you’ve reported to the same location. Those are fact-intensive questions as to whether or not those times and those hours count towards your qualifying for FMLA or CFRA.

Regardless of whether or not you qualify for leave under CFRA or FMLA, it’s also important to note that there’s other leaves that are available to you. For example, the Fair Employment and Housing Act requires an employer to provide leave for a medical condition if it’s not an undue burden. FEHA doesn’t require the employee to work for more than a year. FEHA applies from day one that you got there. The Fair Employment Housing Act doesn’t require that you work a certain number of hours or that they have 50 employees in a 75 mile radius.

Sometimes, with regards as to whether or not an employee is entitled to leave after 12 weeks have expired, the employer says that you’ve burned through your CFRA and that you’ve burned through your FMLA time. The employer says, “You either have to come back now, or I’ll terminate you.” What employers don’t understand is, in addition to the CFRA leave and the FMLA leave, employees are entitled to additional leave under the Fair Employment and Housing Act. Even though you’ve done your 12 weeks of leave seeking medical care, you may need some additional time to finish up your treatment or you need additional leave because you have treatment every Tuesday or every Friday. Under the Fair Employment and Housing Act, you very well could still be entitled to leave beyond the 12 weeks.

Violation of FMLA Rights

Last week I was in a deposition of a client that we were representing and the issue came up as to what the employer’s obligation was under the the Family Medical Leave Act and, in California’s version, the California Family Rights Act. In this situation, the employee unfortunately had a medical condition that prevented the employee from being at work for ten weeks. They had a medical operation and underlying medical treatment that prevented them from doing any work for a ten-week period.

After that ten week period, they had follow-up visits. The follow-up visits happened every Friday, but, as a result of the treatment, that employee couldn’t work for a day or two after the follow up treatment. The employee typically worked Monday through Friday, so they were seeking leave under FMLA every Friday so they could go seek follow up treatment for a ten-week period. The Family Medical Leave Act and the California Family Rights Act are pretty similar. They provide for 12 weeks of leave per year, either on a continuous basis for ten weeks or on an intermittent basis, or a combination. In this circumstance, they had family medical leave or CFRA leave for a ten-week period to be followed up by intermittent leave, so every Friday they would take off for leave.

The employer actually gave this employee the ten weeks off, but when she said she needed time off every Friday to go seek treatment, the employer said no and they terminated her. We spent a lot of time just establishing that, at the time they made that decision, she still actually had two weeks of FMLA leave available, basically ten days. Under FMLA and CFRA, you can take that FMLA leave on an intermittent basis, every Friday, to go seek treatment, or three times a week if you needed that treatment. Under the FMLA and the CFRA, you’re entitled to that leave. You’re also entitled to a situation not to be retaliated against for taking that leave or interfering with your ability to take that leave.

Even when all your leave is taken under the CFRA and the FMLA of 12 weeks, please understand you still might have protection under California’s Fair Employment and Housing Act as a form of reasonable accommodation. Even if all your treatment isn’t done within that 12 weeks and you still need a little bit more time to go get better, unless the employer can show that it’d be an undue burden to keep that position available to you or not terminate you, you have leave available to you as a form of reasonable accommodation beyond the 12 weeks.

Out of all the areas of law that we do, calculating how much leave an employee is entitled to, as to whether or not it’s an undue burden to keep the position available, is one of the hardest areas of the law that we practice.

Is My Employer Obligated to Pay Me for Family Medical Leave?

One issue that comes up is, if you take leave, is you employer obligated to pay you while you’re out on Family Medical Leave Act, or a lot of times, what we’d call the California Family Rights Act. For the most part, the answer is, no, your employer isn’t required to pay you while you’re out on FMLA leave or CFRA leave. With that being said, if you have leave available to you, either paid time off or vacation or sick leave, the employer has to make that available to you.

Sometimes, if you’re disabled as a result of an underlying injury, in addition to being compensated from your employer through paid time off, vacation, or sick leave, once that money is exhausted you might be able to file a claim for state disability. It’s also important to note that if you’re taking leave as a result of an injury at work, you should understand that in addition to taking leave under the Family Medical Leave Act you also should look at whether or not you should file a claim for workers’ compensation and receive disability payments or wage replacement payments while on workers’ comp.

While an employer isn’t required to pay you while you’re out on FMLA leave, there are various ways to get paid while on FMLA.


 

Do you believe you have a claim under the Family Medical Leave Act? Check out these 5 FMLA tips, then all our California FLMA attorneys today.

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