Are you a parent of a child with disabilities or a serious medical condition? Did you know that these parents are at high risk for employment discrimination? The Family Medical Leave Act (FMLA) is a federal law that was intended to provide important job protections to parents who need to take time off from work to be with children receiving medical care or recuperating from serious health concerns. Critically, the Act permits parents to take unpaid leaves of absences from work with the promise of having jobs to return to. With FMLA, parents may take time off work when their children are confronted with “serious health conditions” requiring hospitalization, routine appointments with medical doctors, therapists and other professionals.[1]
What Are the Qualifying Conditions for FMLA?
The following scenarios fall within the law’s coverage:
-Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the provider’s supervision
-Autism
-Chronic or long-term physical illnesses
-Maternity/Paternity Leave
-Many psychiatric disabilities
-Many developmental disabilities
How Long Can Parents Take Leave?
Parents may take leave for up to 12 weeks. Leave time is permitted for unplanned occasions, such as days when episodic flare ups occur. The duration of leave may be as short as a few hours on an occasional or sporadic basis or may last as long as 12 weeks. To assist children with chronic health conditions who are in need of care giving assistance, parents can obtain leave even on days when doctors and therapists are not consulted, FMLA leave also permits parents to obtain temporary reductions in work schedules.[2]
Who is Protected?
-Biological Parents (married or unmarried) of minor and adult children;
-Step-Parents of minor and adult children;
-Legal Guardians of minor and adult children.[3]
How Does an Employee Become Eligible to Use FMLA?
An employee is eligible to use FMLA if he/she satisfies the following conditions:
1) have at least 12 months job seniority;
2) worked no less than 1,250 hours for the employer during the prior 12 months;
3) work for an employer having at least 50 employees within 75 miles of their job of the location; and
4) intend to return to their job at the end of their leave period.[4]
When the need for leave can be anticipated, workers are required to provide employers with at least 30 days advanced notice. When such advanced notice can’t be provided, notification must occur as soon as practicable.[5]
Are Employers Required to Pay Wages During FMLA Leave Periods?
No, Employers are not required to pay wages during FMLA leave periods and may also require workers to exhaust days allocated for paid vacation time and sick leave before granting FMLA-related leave. Those employers who normally pay for workers’ health insurance premiums, fully or partly, must continue doing so during the FMLA leave period. Workers taking extended leave must be returned to the same or equivalent positions to those previously held.[6]
What are the State Standards for Family Medical Leave?
The FMLA also allows states to set standards that are more expansive than the federal law and many states have chosen to do so. The table below includes the statutory provisions of states with their own family leave laws, including California, Connecticut, D.C., Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington and Wisconsin, most of which have expanded either the amount of leave available or the classes of persons for whom leave may be taken.[7]
Paid Family Leave: Only three states — California, New Jersey, and Rhode Island — currently offer paid family and medical leave. New York will join them effective Jan. 1, 2018, after passing the Paid Family Leave Benefits Law during the 2016 session. All four state programs are funded through employee-paid payroll taxes and administered through their respective disability programs. The state of Washington passed a paid family leave law in 2007, originally to take effect in October 2009, but the law was never implemented and subsequent legislation has indefinitely postponed its implementation.[8]
Paid Sick Leave: Five states currently require paid sick leave. In 2011, Connecticut became the first state to require private sector employers to provide paid sick leave to their employees. California became the second state to enact paid sick requirements, with the passage of the Healthy Workplace, Healthy Families Act of 2014. Massachusetts voters approved the Earned Sick Time for Employees ballot measure during the 2014 election, and the Oregon and Vermont Legislatures enacted paid sick leave laws in 2015 and 2016, respectively.[9]
School/Parental Leave: A small number of states provide for a limited number of hours annually for parents to attend school-related events and activities for their children: California/40 hours, DC/24 hours, Illinois/8 hours, Louisiana/16 hours, Massachusetts/24 hours, Minnesota/16 hours, North Carolina/4 hours, Rhode Island/10 hours, Vermont/12 hours. Nevada makes it unlawful to terminate an employee for using leave to attend a child’s school-related activities.[10]
Conclusion
If you need to take time to care for your special needs child, make sure that all communications concerning FMLA are confirmed in writing. In those letters or memorandums, briefly discuss the nature of your child’s ailment or that your child has a serious health condition. Also, make sure that you mention that the leave period will not exceed twelve (12) weeks. Finally, keep in contact with your supervisor or Human Resources department, and let them know when you intend to return to work.
If you are facing a dispute over FMLA, please feel free to contact MDK Law today. MDK Law is based out of Bellevue, Washington, and we have attorneys experienced in employment discrimination and special education law who are licensed in Washington, California, New York, Texas, and Oregon.
[1] http://www.wrightslaw.com/advoc/articles/fmla.protect.spolter.htm
[2] http://www.wrightslaw.com/advoc/articles/fmla.protect.spolter.htm
[3] http://www.wrightslaw.com/advoc/articles/fmla.protect.spolter.htm
[4] https://www.dol.gov/whd/fmla/
[5] https://www.dol.gov/whd/fmla/
[6] https://www.dol.gov/whd/fmla/
[7] http://www.ncsl.org/research/labor-and-employment/state-family-and-medical-leave-laws.aspx
[8] http://www.ncsl.org/research/labor-and-employment/state-family-and-medical-leave-laws.aspx
[9] http://www.ncsl.org/research/labor-and-employment/state-family-and-medical-leave-laws.aspx
[10] http://www.ncsl.org/research/labor-and-employment/state-family-and-medical-leave-laws.aspx