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Avoiding FMLA employment disputes

On Behalf of | Jan 6, 2022 | Employment Law

Massachusetts workers who want to exercise their rights under the Family and Medical Leave Act (FMLA) are often confused about how to request leave and to have that leave approved. The FMLA permits employees to take time off for medical reasons, care for a family member, give birth or adopt a child and take parental leave. The employer can request medical and other information from the employee to confirm that the leave is justified. Requests for medical information should not necessarily be regarded with suspicion. However, disagreements are common and it is important to know how to address them.

Understanding key points about FMLA

Being clear about what the FMLA does and does not allow is important. Time off under the FMLA is unpaid. Some, but not all employers, offer short term disability to their employees during their leave if eligible. In Massachusetts, employees may be eligible for paid leave under the Paid Family and Medical Leave Act, or under employers’ paid family leave policies, if any. The employee health benefits will remain intact. The FMLA requires that when the employee returns, he must be restored to the same position or an equivalent position as before. However, the FMLA does not assure an employee a job upon return if the employer already was contemplating a reduction in force or for cause termination before the employee takes a leave. It also does not shield an employee from completing a performance improvement plan already in place (although the plan should be put on hold during the leave). Terminations or other adverse employment actions after an FMLA leave can be a fertile ground for dispute.

In general, the employee has 12 weeks of time off in a 12-month time frame, provided she meets a certain number of hours worked before the leave. If the time off is needed because a military family member needs to be cared for, it can extend to 26 weeks.

FMLA applies to workplaces that have 50 or more employees (working within a 75-mile radius) for at least 20 calendar workweeks in the current or prior year. Employees must have worked for the employer for a minimum of 12 months and logged 1,250 hours. Employers cannot retaliate against an employee for the exercise of his protected right to take FMLA leave. The employer will request medical certification to start and continue the leave.

Employers and employees should know the rules of FMLA AND CONSULT COUNSEL IF NECESSARY

Unless the employer has a sophisticated Human Resources department fully equipped to handle requests for leave under the FMLA, the employer would be well served to contact counsel to ensure a request for leave is properly documented and to understand what to do if, for instance, there were performance problems that predated the request for leave. Employees are often confused and suspicious of the paperwork requested. An attorney can help them navigate what information is appropriate for an employer to request.