Five Suggestions for Protecting your Rights Under the FMLA

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The Family and Medical Leave Act (FMLA) protects the jobs of eligible employees who take time off from work to take care of their own serious health condition, to take care of the serious health condition of an immediate family member, or to take care of a newly born or newly adopted child. When the law works as it should, employers grant eligible employees up to twelve weeks of unpaid leave in a year, and then allow those employees to return to their same job or an equivalent job at the end of the leave.

In practice, however, this process does not always work as smoothly as it should. Sometimes employers wrongfully deny leave requests or take some other action to interfere with an employee’s right to take FMLA leave. Sometimes employers refuse to allow an employee to return to work upon the conclusion of FMLA leave, or take other steps to retaliate against the employee for asserting his or her rights under the FMLA. As an employee, there are several steps that you can take to ensure that your right to take time off and then to return to work at the end of your leave will be protected:

Make sure that your request for leave is clear.
While the law does not require an employee to specifically request “FMLA leave” by name, it does require the employee to inform the employer that: 1.) a leave-qualifying condition may be present.; and 2.) the employee is requesting leave. It is not enough for the employee simply to say, for example, that “I’m sick.” If your request for leave is clear, it will become less likely that your employer will be able to claim later on that you never made a request for leave at all.

Make sure that you follow your employer’s requests for documentation.
Your employer, within certain limits, may request you to document your need for leave before it grants your request. Typically, your employer will ask you to have your doctor (or your family member’s doctor) complete official FMLA forms that specify the nature of the leave-qualifying condition and how long it is expected to last. The law requires your employer to give you a reasonable period of time to return the form. Within certain parameters, your employer may also request a second opinion, at the employer’s expense, or even a third opinion. Even after your employer approves your request for leave, it can still – within certain limits – require you to certify or recertify your need for leave. It is important to follow your employer’s requests for documentation so as to not sacrifice your right to take leave.

Make sure that you pay any required health insurance premiums during your leave.
The law requires that your employer not cancel your health insurance or any other employee benefits while you are on leave. However, your employer can legally request you to pay the portion of your health insurance premium that your employer typically pays while you are out on leave. If your employer has such a policy, make sure that you pay the premiums in a timely manner. Especially if the reason you are taking FMLA leave is because of your own serious health condition, you do not want to risk the cancellation of your policy because you have not paid the required premium.

Make sure you communicate with your employer regarding your intended return to work.
Within certain limits, your employer can require you to check in periodically during your leave regarding the date of your intended return to work. Make sure that you inform your employer of the date that you intend to return to work so that your employer can make the necessary arrangements with your temporary replacement or other employees. If you are in sufficient communication, it will become less likely that your employer will claim that you abandoned your job or give you any problems with returning to work.

Make sure that you protect your right to be returned to your same job or to an equivalent one.
The FMLA requires that your employer reinstate you to your previous position (or to an equivalent one) upon your return to work. There is no specific bright line rule as to what constitutes an “equivalent” job, but courts will often look at whether the new job is comparable in terms of salary, duties, and rank. If your employer refuses to allow you to return to work or demotes you upon your return, you may want to consult an attorney to help your protect your right to reinstatement.