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Family Medical Leave Act Violations

What is FMLA?

FMLA is the acronym for Family and Medical Leave Act ("FMLA"). The Washington State counterpart is the Washington Family Leave Act ("FLA"). Under FMLA, an employer is required to provide an employee with up to 12 weeks paid or unpaid medical leave (An employee will be able to use Washington State's medical leave benefits starting January 1, 2020). For an employee to be qualified for 12 weeks of medical leave under the FMLA:

  • The employee must have worked 1,250 hours in a 12 month period
  • The employer must have 50 employees within a 75 mile radius
  • The leave requested must be for birth of a child, adoption, foster care placement of a child, serious health condition (for employee, family member, or domestic partner), qualifying exigencies for military deployment, or a serious injury or illness of a family member arising from military service
What is a serious health condition?

The FMLA does not cover medical leave for minor health conditions (e.g., cold, stomach flu). The FMLA provides medical leave for serious illnesses or injuries.

For example:

  • a person who develops bronchitis or pneumonia from a cold
  • a person who ends up in the hospital with dehydration because of the stomach flu
  • a person gets into a car accident and suffers injuries that prevents them from working
  • a person who suffers a heart attack
  • a person who requires leave during pregnancy
  • a person requiring leave after the birth of their child
Does the FMLA 12 weeks run concurrently with Washington State's FLA 12 weeks?

Federal law (FMLA) provides 12 weeks of pregnancy/post-pregnancy leave. Washington state law (FLA) 12 weeks of leave does not start to run until the woman is released back to work. The FMLA then runs concurrent with the FLA. For example, a woman takes FMLA leave after she has her baby, and her doctor releases her back to work 6 weeks later. At the 6-week mark, her FLA would start to run concurrently with her FMLA. The woman would be entitled to 18 weeks of leave from her employer. 

In Washington State, an employee can take 12 weeks FLA to care for a domestic partner (FMLA does not recognize domestic partners as a qualifying purpose to take leave). However, if the employee then requires medical leave for a FMLA qualifying purpose, the FMLA 12 weeks would be available. For example, if an employee's domestic partner falls ill and requires care from the employee for 12 weeks, the employee would still have available 12 weeks of leave under FMLA for the birth of a child, adoption of a child, serious illness condition (family member or employee), military exigencies, etc.

In Washington State, if a qualifying employee exhausts all or part of his or her FMLA entitlement because of qualifying military exigency leave, the employee may still have access to all 12 weeks of state FLA. This is because certain military exigencies are not covered under the FLA and certain covered servicemembers do not meet the definition of family member under the FLA. In such cases, the FLA will not run when the FMLA is running for those purposes. Therefore, the employee may have 12 weeks FLA available for other qualifying purposes (birth of a child, adoption, serious illness, etc.)

 What notice is required to an employer for FMLA leave?
  • Written or oral notice by: fax, email, or phone. If you are unable to provide notice, an appointed person may do so for you.
  • 30 days before the foreseeable leave or as soon as practicable for unforeseen leave.
  • The employee must provide enough information to put the employer on notice that the employee may be protected under the FMLA (e.g., provide facts about your need for time off in relation to parenting, a serious illness or injury, or military or family obligations)
Can an employer require a "certification" of an employee's requested FMLA leave?

Yes, an employer can require an employee to provide additional information regarding their FMLA leave. An employer can typically require an employee to provide certification of a serious health condition, a family members serious health condition, an employees need for military caregiver leave, or need for exigency leave (leave for the deployment of an employee's son, daughter, spouse, parent). A certification of a serious health condition is usually supported by information gathered from the employee and their doctor. The employer must provide the documents needed for the certification. Once the employee receives the documents for the certification the employee must return the completed certification within 15 days, unless this is not practicable (e.g., the employee's doctor is not available).

Can an employee use FMLA leave intermittently?

Yes, an employee with a serious health condition can take intermittent leave as required for the serious health condition, as long as they are qualified under FMLA. 

What is an FMLA violation?

An FMLA violation consists of an employer:

  • counting FMLA-qualified absences against the employee
  • requiring the employee to give too much notice (FMLA requires 30 days notice for foreseeable leave (e.g., surgeries, medical procedures) and for unforeseeable leave (e.g., car accidents, heart attack, terminally ill family member, premature birth of a child) as soon is practicable).
  • failing to continue health insurance
  • hounding and pressuring the employee to return to work (e.g., checking up on the employee constantly, requiring frequent updates and detailed information beyond what FMLA allows)
  • disciplining or firing an employee for taking FMLA qualified leave
  • requiring the employee to work while they are on FMLA leave

 If you believe your employer violated your FMLA rights and would like to discuss your case contact us.

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