It is common for people to take a leave of absence from work at some point in their career for various health-related reasons. In Arizona, these employees are protected by their employment rights that allow them to take medical leave from work to ensure they can take care of themselves or their family without consequences, such as losing their job or being treated unfairly as a result of taking leave.

Unfortunately, there are often cases where the employer will terminate or refuse to pay the employee once they are on leave. Thankfully, these employees are protected by the Family and Medical Leave Act of 1993.

In 1993, the federal Family and Medical Leave Act was passed to guarantee leave, health insurance coverage, and reinstatement of their job to employees. The law is intended to help Americans balance work and family responsibilities. The Act allows employees to take a reasonable amount of unpaid leave for several reasons.  This could pertain to car accident injuries, illnesses, caring for family members with serious health conditions, or even having a child. Some states have other laws surrounding medical leave, however, Arizona is not one of those states. Therefore, employees in Arizona only have rights to FMLA.

Family Eligibility Requirements

Not all employees have FMLA protection. To be eligible for FMLA protection, an employee must:

  • Work for a company with at least 50 or more employees that work each workday for 20 or more calendar workweeks in the current or preceding year.
  • Have worked for the company for at least a year and worked at least 1,250 hours in the last 12 months.
  • Work at a location with at least 50 or more employees within a 75-mile radius.
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The FMLA’s eligibility requirements apply in all FMLA cases, including retaliation cases.

Reasons for FLMA Leave

Leave must be granted for certain situations, including:

  • A child’s birth, adoption, or foster care placement.
  • Care for a sick spouse, parent, or child.
  • A personal serious health condition.
    • A “serious health condition” is one that involves inpatient care in a hospital, hospice, or residential medical facility, including any period of incapacity related thereto or any subsequent treatment in connection with such inpatient care; or continuing treatment by a healthcare provider. Therefore, this does not cover minor health issues.
  • Handle qualifying exigencies arising out of a family member’s military service.

Duration of Leave

Employees in Arizona may take up to 12 workweeks of leave in a 12-month period for a serious health condition, bonding with a new child, or qualifying exigencies. This leave renews every 12 months, if the employee continues to meet the eligibility requirements. If the employee does not continue to meet the eligibility requirements, they must return to work after the 12-month period. The employee must be able to show via documents and health records that they are still eligible to extend their leave.

Employees who need military caregiver leave may take up to 26 weeks of leave in a single 12-month period. An employee is only eligible to extend this leave if the same family member is injured again, or if a different family member suffers an injury while on active duty.

The FMLA permits leave to be taken intermittently or on a reduced leave schedule where it is medically necessary. This means that a person may take a few hours off a day or a few days off a week to deal with family health issues covered by the Act. For example, taking the family member to urgent appointments. For the birth or adoption of a child, however, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees, unless the mother or child has a serious health condition in connection with the birth.

Notice by Employee/Employer

If an employee knows that they will be taking FMLA leave, they must inform their manager and/or HR department at least 30 days in advance. If the employee needs to go on leave sooner than 30 days, they need to inform them within 1-2 days. Once the employee informs the employer of their leave, the employee should obtain a copy of the company’s FMLA policy to ensure they have the proper forms completed before they leave. The FMLA imposes notice and paperwork requirements on both employees and employers, so it is important to act quickly.

Although the employees have an obligation to give the initial notice of their need for leave, the employer must make all employees aware of this requirement. This is accomplished by posting information regarding the Act and providing written guidance in handbooks or other documents explaining the Act’s provisions to employees. If an employer does not post or provide proper notices, they cannot take action against the employee for failure to provide advance notice of the need to take leave or failure to comply with any provision required to be set forth in the notice. Overall, it is the employers job to make sure that their employees are fully educated on the policies and requirements surrounding FMLA leave.

When the employee provides notice of the need for leave, the employer must give the employee written documentation detailing the employee’s responsibilities before they take their leave. This should include:

  1. Whether the leave will be counted against FMLA leave entitlement.
  2. Any requirement for medical certification.
  3. The employee’s right to substitute paid leave, and the employer’s intention to require substitution of paid leave.
  4. Any requirement for the employee to make health insurance premium payments, and the possible consequences of failure to make such payments on a timely basis.
  5. A need to present a fitness for duty certificate at the end of the leave.
  6. The employee’s status as a key employee and the attendant consequences.
  7. The employee’s right to restoration to the same or equivalent job upon return from leave.
  8. The employee’s potential liability for payment of health insurance premiums if they employee fails to return to work.

 

An employer can require medical certification if the leave request is due to the health of the employee or a family member. The DOL has developed an optional form (WH-380) for employees’ use in obtaining medical certification. When the need for medical leave is foreseeable, the employee should provide the medical certification before they take their leave. If this is not possible, the employee must provide the certification within the time frame the employer requests (which cannot be less than 15 calendar days from the date of the request).

Has your Employer Violated your FMLA Protection Rights?

During the employee’s leave of absence, the employer must maintain the employee’s existing coverage under any employer-provided group health plan, at the same cost they pay while working. Although FMLA leave is unpaid, employees may be allowed/required to use their accrued paid leave during FMLA leave.

Any eligible employee who takes FMLA leave not exceeding 12 weeks must be returned to the position he or she held before the leave or to an equivalent position. Taking FMLA leave should not cause you to lose any benefits that you earned before you took the leave. The only exceptions to this are if the employee is unable to perform an essential function of the position because of a physical or mental condition, or if they are considered a “key employee.” A “key employee” is an employee who is paid among the top 10{eda8e1c225e804837800f6aac282101cad58fa80c7c6b007f61da1d364201bb5} of employees within 75 miles of the worksite. These employees cannot be denied their FMLA leave, but they can be denied their same position when they come back if it would cause substantial economic injury to the employer’s operations.

The FMLA makes it unlawful for an employer to deny leave to an eligible employee or otherwise “interfere with, restrain, or deny the exercise of or the attempt to exercise” FMLA rights. It is also unlawful for an employer to discriminate or fire an employee for:

  1. Filing a charge or instituting a proceeding under or related to the FMLA.
  2. Giving information in connection with any inquiry related to the Act.
  3. Testifying in any inquiry or proceeding related to the Act.

Filing a Claim

If you feel that your employer has violated your FMLA rights, you must file a claim no later than two years after the last alleged violation. In the case of a willful violation, an action may be brought within three years of the date of the occurrence. Two types of causes of action are available under the FMLA: claims that an employer interfered with an employee’s exercise of their FMLA rights and claims in which the employee asserts discrimination or retaliation for having engaged in activity protected by the FMLA Act.

When filing a claim, an employee can file suit individually or on behalf of other employees in any state or federal court. An employee who files suit under the FMLA may be entitled to a jury trial, and not exhaust any administrative remedies, or even file an administrative complaint before filing suit.

Have you lost a job because you took a leave of absence for a medical issue? Is your employer interfering with your right to take FMLA or discriminated against you for taking FMLA? You may have a case to get back lost wages or reinstatement to your job under the FMLA. The FMLA can be difficult to navigate, so it is imperative that you have trustworthy and dedicated attorneys by your side. The attorneys here at Shayna Law would be happy to assist you file a claim to defend your FMLA protection rights.