Use the Power of the FMLA To Fight Poverty and Homelessness

Use The Power of the FMLA to Fight Poverty and Prevent Homelessness

In passing the Family Medical Leave Act of 1993, Congress ensured that qualifying employees would not be forced to choose between their jobs and caring for themselves or a loved one in the face of pregnancy or a serious medical condition.  By supplying your employer with the appropriate notice, you can take the time off you need (up to 12 weeks) without worry; your right to be reinstated is guaranteed under the FMLA.

The FMLA is a very broad law allowing an employee to take leave each year to care for a newborn, a newly adopted child or a seriously ill family member, or to recover from the employee’s own serious health conditions, including pregnancy.

Congress embraced the FMLA as one of the best means for low-income workers to fight against poverty, namely, by keeping their jobs:

“While the need for family leave applies to workers across the economic spectrum, that need is greatest for the low wage earner….Without job-secured family and medical leave and its promise of a steady paycheck upon return from leave, low-wage workers in the midst of family or medical emergency risk debt, welfare, and even homelessness.”

Although the FMLA leave is unpaid, you may use your vacation, sick leave or disability benefits to receive pay during this stressful period.  Leave may also be taken intermittently, as opposed to a two months block of time.

Your Employer Must be Covered by the FMLA, and you must be eligible to assert FMLA status.

There’s no reason not to take FMLA leave if warranted if you are covered by an eligible employer and you yourself are eligible having worked for that covered employer for a total of at least 12 months, for at least 1250 hours, at a location where there were at least 50 employees employed by the employer within 75 miles.

Your Employer Doesn’t Have a Crystal Ball--Communicate!

What do you tell your employer? Abracadabra? What are the magic words that would put an employer on notice?  Well, there aren’t any.  You do not need to even say FMLA, although it certainly wouldn’t hurt your cause.  You don’t have to shout it from the rooftop, but you must give your employer proper notice that you need to take a leave of absence that may fall under the FMLA. Thirty-days notice is required for foreseeable leave; emergency situations require notice as soon as practicable.  The notice can be given verbally or in writing but you must provide your employer with enough information to suggest that you might qualify for leave—so you would tell your employer about your condition or your loved one’s serious medical needs, etc.  The wise employer won’t take any adverse action against you once you fulfill this basic requirement.[1] This information puts the ball in your employer’s court, as your employer now has 5 business days to provide you with three important notices: the Eligibility Notice, the Designation Notice and Rights and Responsibilities Notice.

1.       The Eligibility Notice—this simply lets you know that you qualify for FMLA leave.  The employer can provide it either verbally or in writing.

2.       The Designation Notice—must be provided in writing and lets you lets you know whether the time off with be counted against you FMLA leave entitlement.

3.       The Rights and Responsibilities Notice—this lays down the law so to speak regarding what is expected of you while you are on leave, including whether a medical certification is required.  It must be in writing and must explain the consequences you face if you fail to meet your obligations.

The Power of the FMLA Protects the American Worker and Our Military

Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty status in the National Guard or Reserves in support of a contingency operation may use their 12-week leave entitlement to address certain urgent needs or “qualifying exigencies.”  What’s a qualifying urgent need?  Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.

Common Sense and Common Courtesy

Judges adjudicate cases based on the facts and the law.  You want your facts to show that you’re reasonable.  Is it unlawful for your employer to call once a week and check on you while you’re on leave?  Generally, no.  Calling everyday to goad you into returning to work would more than likely be a violation. Can you go play golf while on leave?  Employers have an interest in not allowing employees to abuse the FMLA.  Is playing golf compatible with you taking care of a family member or your own serious medical condition?  Really?


[1] While there are instances where an employer could terminate an employee who has asserted her FMLA, the employer would need to show a legitimate, non-discriminatory reason for the termination.

From the Author: Using FMLA

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