Florida Family and Medical Leave Act Lawyer FMLA
The Family Medical Leave Act FMLA allows employees and military personnel to take time off of work when they have a close family member who has a serious medical condition or is having a baby. In order to qualify for Family Medical Leave Act FMLA benefits, an employee must work for a company or an employer that has at least 50 employees. You also have to work for that employer for at least one year. During that one year, you have to have worked at least 1250 hours. In order to request Family Medical Leave Act FMLA benefits, you must generally give your employer 30 days written notice if it is not an emergency situation. This typically occurs when there is a scheduled surgery or procedure. If the reason for the Family Medical Leave Act FMLA request is an emergency then the employee must give the employer notice as soon as practicable. This means that the employee must give the employer notice within two or three business days after the emergency.
You or a close family relative must have a serious medical condition to ask for Family Medical Leave Act FMLA leave. Generally speaking, there are two ways to qualify as having a serious medical condition. First, there must be an overnight stay at the hospital. The second way is for the employee to have suffered a period of incapacity of more than three days. Finally, if the employee is having a baby she is eligible to have a Family Medical Leave Act FMLA leave.
An employee who has worked for at least a year and has worked more than 1250 hours is entitled to up to 12 weeks of Family Medical Leave Act FMLA benefits. The Family Medical Leave Act FMLA leave can be taken in one block of time or in increments or intermittent leave. For example, this means that, based upon a serious medical condition, the employee can request taking a Family Medical Leave Act FMLA leave for two hours during a workday or request every Thursday off. The employer is allowed to ask the employee to confirm the serious medical condition and ask the employee for certain medical records or documents. However, if the employee does provide the employer with a Certificate of Health Care Provider for Employee’s Serious Medical Condition the employer cannot ask for any other medical records or documentation. If the Certificate of Health Care Provider for Employee’s Serious Medical Condition form is incomplete, the employer can ask the doctor to fill it out completely. An employee must have this form completed and returned to the employer within 15 days. If the employee takes the Family Medical Leave Act FMLA leave in one block at a time or the entire 12 week period, the employee is entitled to his or her job back upon returning to work. The Family Medical Leave Act FMLA provides that the employer must return the employee to his or her former job or one that is the same “equivalent” to the job that the employee had before the Family Medical Leave Act FMLA leave. This also means that the employee is entitled to receive the same pay, benefits and job promotion possibilities that he or she would have been entitled to during the Family Medical Leave Act FMLA leave.
Some employers provide its employees with health insurance. If the employee is taking a Family Medical Leave Act FMLA leave and is not getting paid by the employer, the employer may require the employee to pay his or her portion of the health insurance premium payment to continue the health insurance coverage. If the employee is getting paid during the Family Medical Leave Act FMLA leave then the employee’s portion of the health insurance premium should be deducted from wages. An employee does not have to reapply for health insurance benefits after a Family Medical Leave Act FMLA leave so long as the employee has not allowed the health insurance to lapse.
Employees can be forced to use other benefits such as paid time off, sick time and vacation time before asking for Family Medical Leave Act FMLA leave. This only applies if the employee handbook states that that is the way the employer will handle requests for Family Medical Leave Act FMLA leave. Family Medical Leave Act FMLA benefits can be obtained even if an employee is receiving workers compensation benefits. An employee can use the employer-provided paid time off and benefits if he or she is receiving workers compensation benefits. The paid time off benefits or sick time will be used to supplement the workers’ compensation benefits so that the employee will receive a full paycheck.
If an employer violates the Family Medical Leave Act FMLA the employee can sue to receive up to 12 weeks of wages or other benefits provided under the Family Medical Leave Act FMLA. An employee must sue his or her employer within two years of the Family Medical Leave Act FMLA violation. There is an extended statute of limitations if the Family Medical Leave Act FMLA violation was based upon the employer’s willful misconduct. When pursuing a Family Medical Leave Act FMLA violation, the employee does not have to file a charge of discrimination with the Equal Employment Opportunity Commission or EEOC before filing a lawsuit. A complaint may be lodged with the United States Department of Labor.
Some cities in Florida have enacted a local ordinance regarding Family Medical Leave Act FMLA. The Miami-Dade County Ordinance is essentially the same as Family Medical Leave Act FMLA but contains a broader definition of a covered relative. This ordinance includes grandparents. Victims of domestic violence in Florida are also entitled to Family Medical Leave Act FMLA leave. Florida law provides that an employee can have up to three days of unpaid leave if he or she is a victim of domestic violence so long as the employee has worked for the employer for at least three months. This statute does require the employee to have used all vacation, sick days and personal time off. In Miami-Dade County, the local ordinance would allow an employee to receive up to 30 days of Family Medical Leave Act FMLA leave.
Am I eligible for FMLA benefits? (Can I get FMLA benefits?)
In order to be able to receive FMLA benefits, your employer must have at least 50 employees. Second, you had to have worked for your employer for at least one (1) year. Third, you have to have worked at least 1,250 hours during the last twelve (12) months of your employment. You also must have a condition or situation that qualifies you for FMLA which is discussed below.
How can I get FMLA benefits?
You must generally give your employer 30 days notice if it is not an emergency situation. If the reason for the FMLA request is an emergency then you have to give your employer notice as soon as practicable, two to three business days after the event at the latest.
How does one qualify for FMLA?
You can take FMLA if you have had a baby. Otherwise, you qualify for FMLA leave if you, your child or spouse have a serious medical condition. There are two ways to satisfy this requirement. One, there must be an overnight stay at a hospital. The second way for the employee to qualify is if the person has experienced a period of incapacity of more than three (3) days.
Does the FMLA apply to military personnel?
Yes.
How much time can I take off with an FMLA leave?
An employee usually can charge up to 12 weeks of FMLA benefits during a twelve (12) period.
Can I work a shorter week using my FMLA leave?
Yes, if you qualify, you can take what is called “intermittent leave” which is working a reduced schedule or less than a full work week because of your serious health condition.
Do I have to give my employer my medical records regarding my serious medical condition?
No. Your employer may require you to have your doctor complete a Certificate of Health Care Provider for Employee’s Serious Medical Condition. If your doctor completes that document your employer cannot ask for any more information. The deadline to provide that medical certification is fifteen (15) days.
Do I get my job back after an FMLA leave?
Generally speaking, the answer is “yes”. The Family Medical Leave Act provides that the employer must return you to your former job or one that is the same or equivalent to the job you had before the FMLA leave. This includes the same pay, benefits that you had when you took your FMLA leave.
What happens to my health insurance when I take an FMLA leave?
If you are not getting paid during your FMLA leave, the employer can require you to make a health insurance premium payment to continue your health coverage. If you are getting paid, the employee’s share of the premium, if any, should be deducted from wages.
Do I have to re-apply for health insurance coverage after returning from an FMLA leave?
No, so long as you or your employer has made the required health insurance premium payments during your absence.
Can my employer force me to use my paid time off during an FMLA leave?
Yes, if the employee handbook states that this is the way FMLA leave and PTO benefits will be handled.
Can I get FMLA and get workers compensation benefits?
Yes, you can use your paid time off benefits when taking an FMLA leave to supplement your workers’ compensation benefits so you receive your full salary.
What damages can I get if my employer violates FMLA?
You can get a money judgment for your salary, employment benefits or wages lost as a result of the FMLA violation.
How long do I have to file a lawsuit regarding FMLA benefits?
Two (2) years. Three (3) years if there are allegations of willful misconduct.
Do I have to file a complaint with the EEOC before filing suit regarding my FMLA benefits?
No.
What is the difference between FMLA and the Miami Dade County Ordinance regarding leave?
They are essentially the same. The Miami Dade County Ordinance is slightly broader because it includes grandparents in the definition of a covered relation.
Can I get an FMLA leave if I have been a victim of Domestic Violence?
In Florida, the answer is “yes” if you have worked for an employer for at least three (3) months. You are entitled to three (3) days of unpaid leave after you have used all of your vacation time, sick days, etc. If you live in Miami Dade County you may qualify for up to 30 days of leave.
How is the Americans with Disabilities Act (ADA) different from FMLA?
The Americans with Disabilities Act (ADA) does not use the term “serious health condition” that the Family and Medical Leave Act uses. Rather, the Americans with Disability Act (ADA) protects a disability or disabilities. The term disability and serious health condition are not necessarily the same. Serious illnesses such as strokes or cancer typically come within the coverage of the American with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Alternatively, however, pregnancies or hernias may not be “disabilities” within the meaning of the American with Disabilities (ADA) because they are not substantially limiting within the meaning of the act.
Taking time off under the Florida Family and Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA) and preserving your job
An employee who takes time off pursuant to the Americans with Disabilities Act (ADA) is typically allowed to return to his or her same job unless the employer can demonstrate that it would cause an “undue hardship” on the employer to not fill the employee’s position while the employee is out. Under the Family and Medical Leave Act FMLA, the employee is entitled to either his or her same job or to an “equivalent position” upon his or her return. Employees whose time away from work does not comply with either act, the employee is entitled to the health insurance coverage maintained by the employer during the employee’s leave from work.
An employee’s physical and emotional health, as well as those of his or her family, is important. The Law Offices of Hoffman & Hoffman, P.A. strive to see that employees get the federal benefits available for events such as the joyous times when a new member joins the family, as well as during the unfortunate time of loss.
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