By: Jenna Dakroub, Spring 2018 HeLP Legal Services Clinic Student Intern
One of the biggest struggles for the families who seek legal assistance from the HeLP clinic is managing their work while also tending to their sick children. Our clients sometimes find it difficult to retain a job because they often have to leave work early or take days off due to a medical emergency. Additionally, these emergencies are not predictable, so they are not always able to give their employer advance notice.
The Family Medical Leave Act (FMLA) is a resource that allows eligible individuals to take up to 12 weeks of unpaid protected leave per year. An employee seeking to take FMLA is required to provide a 30-day notice of the need to take leave to their employer when the leave is foreseeable. In circumstances where leave is unforeseeable, the employee should give notice as soon as possible. FMLA applies to all public agencies, including local, State and Federal employers and local schools; as well as private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. An employee is eligible for leave when he or she satisfies the following: have worked for their employer for at least 12 months; have worked at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. The 12 months of employment do not have to have been consecutive. If the employee satisfies these criteria, the employer must provide the employee with up to 12 weeks of unpaid leave each year. Additionally, FMLA requires group benefits to be maintained during the leave as if the employee continued working rather than taking leave.
One of the permitted reasons to take FMLA leave, which is most applicable to families in the HeLP clinic, is to care for an immediate family member (spouse, child, or parent) with a serious health condition. Serious health conditions under FMLA include: conditions requiring an overnight stay in a hospital or other medical care facility; conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and require ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication); chronic conditions that cause occasional incapacitation and require treatment by a health care provider at least twice a year; and pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest). An employer may require documentation issued by a health care provider when an employee seeks to take leave for a serious medical condition. If documentation is required, the employer must allow the employee 15 calendar days to obtain such records.
While FMLA mandates unpaid work leave, the law permits an employee to elect, or the employer to require the employee, to use paid time off they might have accrued. Additionally, when an employee takes leave, it does not have to be taken all at once and can be taken intermittently instead. Employees can also take reduced work leave schedules, meaning they reduce their usual weekly or daily work schedule. While unpaid time off may not always be ideal, FMLA is a valuable resource for many families. During times of crisis and unpredictability, it can provide job security for many families who have children with serious health conditions.