Family Medical Leave Act (FMLA)

Family Medical Leave Act - FMLA

Has your employer failed to provide your with FMLA or failed to even offer you FMLA?  If you have any issues with FMLA benefits, Saffren & Weinberg are expert attorney who specializes in FMLA cases. 

The Family Medical Leave Act (FMLA) was enacted by Congress in 1993, and singed into law by President Bill Clinton to protect all workers who need leave from their job because of an illness, medical reasons or to take care of a family member who is ill.

FMLA entitles eligible employees to take up to 12 weeks of unpaid, job protected leave every 12 months for family and medical reasons.

Also, your employer cannot block your access to FMLA benefits. If your employer has reason to believe or suspect that an employee requires FMLA benefits, they must offer them to you.

Employees That are Covered by FMLA?

Public and private sector workers are covered and protected under FMLA. If you work for a Public or Governmental Agency, your right to FMLA does not have qualifying requirement.

An employee of a private company is covered under FMLA if the employer employed 50 or more employees in each workday in 20 or more workweeks in the current or preceding calendar year, and if the employer is engaged in commerce or in an industry that affects commerce. 29 CFR §825.104(a). Part time employees are counted in the 50 or more employees, although they may not be entitled to FMLA unless they meet the FMLA requirements.

To be covered by FMLA the employee must have worked as follows:

  • Worked for a covered employer.
  • Worked for a total of at least 12 months. 29 CFR §825.110(a)(1).
  • The 12 months do not need to be worked consecutively.
  • Worked at least 1250 hours over the previous 12 months.

Benefits that Employees are Entitled to Under FMLA

An eligible employee is entitled to take up to 12 weeks of unpaid leave during a 12 month period of time for the following reasons.

  • Birth or placement of a child with the employee through adoption or foster care.
  • To care for an immediate family member with a serious health condition.
  • For the employee’s own serious health condition.

An immediate family member is defined as a biological parent, son, daughter, or spouse (as defined by the state law – in Pennsylvania a same sex spouse is covered).

The 12 month period is calculated as the 12 proceeding months in the calendar year, or the 12 month period, which the employer uses to calculate FMLA.   An employer must make it clear as to which method they are using to calculate the 12 month period.

A serious health condition is defined as an illness, injury, impairment or physical condition that involves:

  • Inpatient care;
  • Continuous treatment by a healthcare provider;
  • Incapacity that requires two or more visits to a healthcare provider;
  • Incapacity due to pregnancy; or
  • Incapacity due to a chronic health condition.
  • Cosmetic treatments or elective surgery is NOT covered under FMLA.

Notice and Certification Requirements for FMLA Leave

Employees seeking FMLA benefits may be required to provide notice to their employer, medical documentation and medical certification. Thirty (30) day advance notice is required for FMLA leave unless such notice is not practicable because of medical reasons.

In all cases reasonable notice of all FMLA leave changes and requests must be provided to the employer.

Employers can also require recertification for FMLA leave, which must be provided in a timely manner. Employersay also require a “fitness for duty” certification for an employee to return to work, which must be provided before the employee returns for duty.

Intermittent Leave Under FMLA 

Employees are entitled to take FMLA Leave intermittently. This permits the employee to take time in several blocks of time instead of one continuous period of time. This intermittent leave could consist of one hour periods of leave.

Employers do not need to consent to intermittent leave if the leave is considered to be medically necessary and emergent. If the need for intermittent leave is foreseeable, then such time must be scheduled with the employer and approved.

What Happens to your Benefits During FMLA Leave?

Employers are generally required to maintain health coverage and benefit packages for eligible employees who are on FMLA leave. This right is not absolute. In the event that an employer changes health plans during FMLA leave, then the employer must afford the employee on leave the same benefits as if they were not on FMLA leave. If an employee is responsible for contribution to their health coverage, they must continue to make such payments while on FMLA leave.

An employee is NOT entitled to pay during FMLA leave.

Restoration of Job and Benefits Upon Return from FMLA Leave

Generally an employee returning from FMLA Leave is entitled to his or her original position, or to an equivalent position with equivalent pay and benefits. An employee’s use of FMLA time cannot result in a loss of seniority, pay, benefits or the like.

Equivalent positions must involve the same or substantially the same duties, responsibilities and authority. This does not mean that the employee will receive the same position upon return from FMLA leave, but it does mean that they are entitled to a similar and equivalent position.

If an employee voluntarily accepts a “light duty” position in lieu of continuing with FMLA leave, the employee’s rights to restoration to the original or equivalent position continues until 12 weeks have passed.

While on FMLA leave, an employee is entitled to any unconditional wage increases that may have taken place while the employee is on leave. This does not include bonuses based on seniority or work performance.

If an employee cannot perform the function of their former position, they are not entitled to their old position or even a new and different position. The employee returning from FMLA must be able to perform the duties of their original position.

Under certain circumstances, an employer may refuse to reinstate certain “key” employees returning from FMLA leave if doing so would cause “substantial and grave economic injury” to the company’s operations 29 CFR §825.217(a).

What Happens if your Employer Violates your FMLA Leave?

If your employer violates your FMLA leave rights or blocks your access to FMLA benefits, call Robert Maizel, Esquire to discuss your case.

You may be entitled to lost wages, punitive damages, payment for the harm that you suffered and even attorney’s fees.

How Can Robert Maizel Help You?

I am an experience employment lawyer who handles these matters regularly.  Our team investigates your claim to secure all of the information to help obtain a positive resolution to your case.  We know the law and we understand your needs.  No matter what your question, please feel free to call us at 215-695-3000 to discuss your case.  All consultations are free of charge.


Robert Maizel, Esquire

Robert Maizel is an Experienced Trial Attorney in Philadelphia with over fifteen years of trial experience.

You will speak to an attorney about your case!

Saffern & Weinberg has offices located in both Center City Philadelphia and Jenkintown, Pennsylvania.  Attorney Robert Maizel is a Partner with the Law Offices of Saffren & Weinberg.

Robert Maizel is associated with, and is Special Counsel with the Law Firm of Saffren & Weinberg. Robert Maizel is not a Law Firm, and rather Robert Maizel is affiliated with the Law Firm of Saffren & Weinberg.  All clients shall formulate an agreement with the Law Firm of Saffren & Weinberg, with the option of hiring Robert Maizel as lead counsel on your case to be heard in the State Courts of Pennsylvania, and Marc Weinberg as the lead counsel in cases to be heard in the Federal Courts of Pennsylvania.  Mr. Maizel handles all actions in the Administrative Courts of Pennsylvania including the EEOC and PaHRC.

Call Robert Maizel at 215-695-3000 to schedule your free consultation.

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