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- In the past, when an employee got pregnant or seriously sick, and had to miss a significant amount of work, the employer would simply fire the employee and hire somebody else. The employee had no legal right to get their job back. Fortunately, times have changed. Enter the Family Medical Leave Act, also known as FMLA, creates some legal entitlements for employees to get their job back. This video is going to explain what rights FMLA gives employees, who qualifies to take a leave of absence, what happens if your employer messes this up and how much money your case might be worth if your employer denied your leave of absence, or worse, fired you. (relaxing music) My name is Branigan Robertson, and I'm an employment lawyer. Before we get started and go back to the whiteboard, I have a few preliminary items to cover. First, while I'm a California lawyer and I only represent California workers, this video is for everyone across America. The Family Medical Leave Act is a federal law and applies to all workers in all states. But if you are a California employee, I highly recommend that you first watch my California Family Rights Act video before you finish this one. In most situations, CFRA provides California workers better protection than FMLA. Second, this video is not legal advice. This is merely meant to be an introduction to the law and the rights that are available to qualified employees. If you have questions about your specific situation, especially if you've been fired, (laughs) I highly recommend that you contact a lawyer in your state as soon as possible. Here is my contact information if you are in California and you feel I've earned your phone call. Third, each part of this video builds upon its previous parts, so watch this video all the way through to really understand the rights granted by FMLA. Okay, let's get into the details. If you qualify for protection under FMLA, the law allows you to take 12 weeks completely off from work in any 12-month period. At the end of your leave of absence, your employer must allow you to return to the same job or to a comparable position with similar pay, benefits, seniority and responsibility. Generally, unless your employer has a benefits package that says otherwise, this leave of absence is unpaid, meaning your employer does not pay your salary or wages while you're gone. However, if you have health insurance through your employer, while you are on your leave of absence, your employer must pay for your health insurance premiums, just like they did while you were working. However, if you decide not to return at the end of your leave of absence, your employer is allowed to demand reimbursement for those premiums while you were gone. What can you take a leave of absence for? FMLA permits you to take a leave of absence from work in six different scenarios. Number one, you need time off for the birth of a child. Maternity leave, right? Everybody knows this. Number two, you need time off because your child, spouse or parent, i.e., an immediate family member, has a serious health condition. I'll define that in a second. Number three, you need time off because you have a serious health condition that prohibits you from performing the essential functions of the job. Number four, you need time off because a family member of yours, an immediate family member, was seriously injured while performing military service. Number five, you need time off because you or a family member is preparing to deploy in military service and you need to make different childcare arrangements or attend official military ceremonies or other things like that. Six, you need time off for placement of an adopted child or a foster child in your home. Okay, quick note. FMLA does not protect domestic partners. However, if you are in California, CFRA does protect domestic partners. Once again, if you are a California employee, I recommend that you go watch my CFRA video before you watch this one. So what exactly is a serious health condition under FMLA? Generally, unless extraordinary circumstances apply, things like the common cold, earaches, upset stomach and flu do not qualify. FMLA does not cover short-term conditions which only last a few days, or surgical procedures that do not involve hospitalization and have a quick recovery period. A serious health condition usually means an illness, injury, impairment or physical or mental condition that involves one of two things. One, inpatient care at a hospital, hospice or residential healthcare facility, which means the patient is staying in the hospital. Or number two, continuing treatment by a physician or under the supervision of a healthcare worker. Additionally, the health condition must prevent you from being able to do your job. Basically, you need to be completely unable to work at all or you're unable to perform one or more of the essential functions of your position, and you're under continuing treatment of a doctor. So let's talk about some examples. This can involve the following situations. You're pregnant or you need prenatal or postnatal care, or you have a chronic condition, like severe asthma, diabetes or epilepsy, or you have a permanent or serious long-term condition, like Alzheimer's, cancer or you had a stroke. Usually things like voluntary or cosmetic treatments are not covered under FMLA and they're not considered a serious health condition, unless it's related to an accident or illness or there's inpatient care required due to complications. Do you need to qualify to take a leave of absence? Yes. Unfortunately, FMLA does not apply to all employees. You can only take a leave of absence under FMLA when, number one, you have been at that company for at least 12 months. Number two, during those 12 months, you have worked at least 1,250 hours. This averages out to about 4.8 hours per workday. And number three, your employer has 50 or more employees within 75 miles of your working location. However, this 50 employee threshold requirement does not apply to public employers. FMLA applies to all public schools, federal agencies, state departments and municipalities, regardless of their size. So how much time can you take off under FMLA? Generally, you can take 12 work weeks off in any 12-month period. So let's say you took 12 weeks of FMLA off a year and a half ago. Well, so long as you qualify again, you could take another 12 weeks off now. And you can take all of your leave in one shot or, in some situations, you can take your leave of absence intermittently. Intermittent leave means that you can take a little here, a little there, on an as-needed basis. Generally, you can't take intermittent leave if your leave of absence is for the birth and care of a newborn child or for the adoption of a child or a foster child. So it's not for maternity leave. However, you can take intermittent leave to deal with your own serious health condition or to care for an immediate family member with a serious health condition, so long as the doctor deems it to be medically necessary. But you are going to want to coordinate with human resources to make sure your intermittent leave doesn't disrupt company operations very much. That's very important. Oh, hey, real quick interruption. This video lays out the basics of FMLA, but it's just an overview. If you need to know more information, I have an extremely detailed FMLA page on my website. That page has multiple videos, citations, and it covers the nuances that tend to trip up a lot of employees. I highly recommend that you go to that page if you have more questions. I'll leave a link below in the description. Okay, let's get back to the video. Well, okay, how should you go about requesting a leave of absence under FMLA? Thankfully, it's actually very simple. First, if you know in advance that you're gonna be taking a leave of absence, then you should give your employer a reasonable amount of advanced notice. If you're pregnant, then you should give your employer at least 30 days' notice before the date your maternity leave is set to begin. If your leave of absence is foreseeable, such as a scheduled surgery or medical treatment, then you should make a reasonable effort to schedule the treatment at a time to avoid disruption to the operations of the employer, so long as it's okay with your doctor. On the other hand, if you have a medical emergency or an immediate family member of yours has a medical emergency, and you can't give advanced notice because you didn't know it was going to happen, then you should give the employer notice as soon as possible, as soon as you know. Second, you should give your employer notice in writing, preferably in an email. This becomes extremely important down the road if there's a legal issue. Third, your employer is allowed to request a doctor's note, medical certification. This means they can require that you give them medical certification documenting your need for the leave of absence. The doctor's note should contain the following things. First of all, the date the serious health condition began. Second, how long the doctor expects the health condition to last. Third, the medically appropriate facts regarding the condition. If the leave of absence is for your own serious health condition, the note should say that you are unable to perform the functions of your job. Finally, if the leave of absence is to care for an immediate family member, the doctor's note should say that you are needed to provide care during the treatment period and an estimate as to the amount of time that you'll be needed to provide that care. Your employer is allowed to request re-certifications from your doctor on a reasonable basis. Finally, as a condition of returning to work, your company is allowed to request that your doctor certify that you are medically cleared to resume work. What if your employer denies your leave of absence request? I mean, just because the law permits you to take a leave of absence doesn't necessarily mean your employer is going to happily comply with that law. In fact, some companies absolutely hate this legal requirement, as it can be a big inconvenience on their company. So should you quit your job if your request is denied? No. Generally, except for extreme circumstances, quitting is usually a terrible option because quitting might feel good if your employer's refusing, but quitting likely hurts your legal case in the long run, so lawyers like me almost never recommend that. The way I see it, if your employer denies your leave of absence, you have two options. First, complain in writing to the appropriate authority at the company. Hopefully, this complaint informs the employer of the legal requirement, and then they change their mind. However, make sure that you make this complaint properly. People complain the wrong way all the time at work, and they end up really hurting their legal case and make it less likely that a leave of absence will be granted. I made an entire video about how to properly complain at work, and I highly recommend you watch it after you finish this video. I'll put a link in the description. Second, if your complaint is unsuccessful, I highly recommend that you contact an attorney. Lawyers like me sometimes recommend that people prepare a written letter and send it to the company with their doctor's note attached, saying that you're going on your leave of absence anyway, and that you plan to return when you're better. But every situation is different, and I recommend that you call a lawyer before you take any actions like that. Finally, if your employer denies your leave anyway, retaliates against you for requesting or taking a leave of absence, fires you or refuses to let you return from a valid leave of absence, you should seriously think about filing a lawsuit. If any of these things happen to you, I recommend that you contact a lawyer as soon as possible to get your case evaluated. If you are in California, my office would be happy to do this evaluation free of charge. That's what a free consultation is. All right, I think now is a good time to sit down and talk about money. So how much money are these cases worth? If your company violates FMLA, what can you recover in a lawsuit? Well, that depends. First of all, there's no statistics out there on average FMLA lawsuit recoveries because all settlements are confidential and they're sealed under contract. However, if you can find a really good lawyer to take your case, one that you trust thoroughly, which is even more important, you should probably pursue that case. Good contingency lawyers simply do not get paid unless they recover money for you first. Lawyers like me do not take cases unless we're really confident that we can get a significant settlement for our client. But to understand how much your case might be worth, you really need to understand how remedies work in employment law. You're able to collect, generally, four different types of damages in FMLA cases. Number one, lost wages. You can win the money that you lost due to the company firing you because you took a protected leave of absence. This includes the lost salary, benefits, hourly wages and bonuses that you were making. For example, if you were making $75,000 per year, and then the company refused to let you return, you're now out a significant amount of money 'cause you're not earning anything. You can recover this money in a lawsuit. Number two, emotional distress. Obviously, if you need a leave of absence, but your employer denies your valid leave of absence request, you're gonna be extremely upset, and this is especially true if you need time off to care for a sick child or seriously sick spouse. In employment law, emotional distress damages are usually much larger than lost wages, but unfortunately, FMLA does not permit you to recover emotional distress damages in most cases. However, if you live in a progressive state, like California, which has additional leave of absence laws, like CFRA or FEHA, you can recover emotional distress damages. So I highly recommend that you ask a lawyer in your state and do a little bit of research. Third, punitive damages. If the company acted with malice, oppression or fraud in its conduct, you may be able to win punitive damages. These are the damages meant to punish the company for acting truly horribly. Obviously, these are very hard to win and they're rare, but if you have a good lawyer and a really good case, these can be extremely large. Four, attorney's fees. While most lawyers like me work on a contingency fee, the law permits plaintiffs and their lawyers to recover attorney fees on top of other types of damages. in FMLA cases. This directly benefits you because it increases the settlement value of your case. It's legal leverage, and since most cases settle, you become a direct beneficiary of this type of recovery. Well, okay, Branigan, how much is my case worth? Well, if you really want to have an estimate as to how much your case might be worth, you have to contact a lawyer in your state. If you're in California, I would be happy to receive your phone call and provide you with a free consultation. All right, let's move the chair and talk about deadlines. What is the deadline to file a case? Well, how long do you have to file an FMLA case? These are called statutes of limitations, and they're tricky. The law says that you must bring your lawsuit not later than two years after the violation of law occurred. However, if you can prove that the adverse action against you and your FMLA rights was willful, whatever that means, then a lawsuit may be brought within three years after the violation occurred. Additionally, to make this more complicated, if you live in a state with additional leave of absence laws, like California, there might be a shorter statute of limitations. So the safest thing I can tell you is call a lawyer in your state before you make any decisions about your case. Statutes of limitations issues are very serious. If you mess it up, you lose your right to pursue your case, so don't mess it up. Call a lawyer. As you can see, if you were paying attention to the whiteboard, there's a lot (laughs) going on in this area of law. Lawyers like me are repeatedly amazed at how often human resources, business owners and companies screw up FMLA rights. Obviously, this video is just meant to be an overview of FMLA. If you are in California and you're having a problem with your company and your FMLA rights, my office would love to take that phone call if you feel like I've earned it. Here is my contact information. We handle a lot of leave of absence cases and would love to get your phone call. That is all I have for you. I hope you have a fantastic day. (relaxing music)