FMLA DISCRIMINATION ATTORNEYS IN TEMECULA, CALIFORNIA

The Family and Medical Leave Act (FMLA) enacted in 1993, affords employees who need to care for their own or their loved ones’ health conditions — or welcome a new child into the family — up to 12 weeks of unpaid leave during a 12-month period.

As with many federal employment laws, employers have often misunderstood and misapplied the leave rights protected under this law to the detriment of employees, and even worse, have taken retaliatory actions against those who’ve exercised their rights under the FMLA. Cases of FMLA discrimination occur all too frequently.

If you’ve been wrongfully denied FMLA leave or suffered adverse employment consequences after having taken such leave in Stockton, Temecula, or Costa Mesa, California, contact Robinson Bradford LLP immediately for a free consultation with our attorneys. We will explain your rights and help you navigate the path to justice in your particular situation.

UNDERSTANDING YOUR RIGHTS UNDER THE FMLA

The FMLA covers employers who work for businesses employing at least 50 individuals within a 75-mile radius. To qualify for protected leave under the FMLA, an employee must have logged 1,250 hours of service during the 12 months preceding the leave request, though the 12 months do not have to be consecutive. (Special rules apply for flight crew members.)

In general, time off under the FMLA can be full or flexible, i.e., either 12 consecutive weeks off or a combination of intermittent weeks, days, or hours maxing out at 12 weeks of equivalent full-time leave. Reasons for taking leave include:

• To care for the birth or adoption of a child

• To care for personal illness or the illness of a family member

• To care for a qualifying exigency for a family member in the military or for a family member being called up

The FMLA has also been amended to allow for up to 26 weeks of unpaid leave in a 12-month period to care for a covered servicemember suffering a serious illness or injury when that service member is a family member, parent, or next of kin.

THE EMPLOYER’S RIGHT TO CERTIFICATION

Asking for FMLA leave can be as simple as telling one’s supervisor of the need; for instance, you may have upcoming surgery for which you require recovery time, or perhaps a family member for whom you need to provide care does. The Act requires that such requests, if foreseeable, be made 30 days in advance, or if sudden or not foreseeable, then as quickly as possible. Employers, however, do have certification rights to verify your claim.

Employers can request medical certification from a health care provider, and they can later request periodic recertification, but such requests can only be made every 30 days unless fraud is suspected. In recertification cases, however, the employer must cover the cost of the health care provider’s verification.

If an employer harbors suspicions about the initial or subsequent verifications submitted, they can request a second opinion at a medical practitioner’s office of their choosing, but they must bear all the costs.

JOB RESTORATION RIGHTS UNDER THE FMLA

Under the FMLA, employees returning from FMLA leave must be restored to their previous positions or an equivalent one with the same pay, benefits, and terms and conditions of employment. Your job rights are protected, but with one caveat.

If an employee is returning from a serious illness or injury, the employer may request a fitness-for-duty certification from the employee’s health care provider. If the employee does not provide this certification, he cannot be reinstated. Additionally, if an employee is reinstated but the employer deems that he presents “reasonable safety concerns,” an additional fitness-for-duty certification can be requested every 30 days.

This fitness-for-duty provision does not apply if the employee is returning from parental leave owing to the birth or adoption of a child, or if they are returning from caring for a family member.

The restoration process, of course, presents another area where employers may try to skirt the FMLA’s provisions. Employees returning from FMLA leave may suddenly find themselves in positions of less responsibility, which then can be cause for a retaliation claim.