What Family Caregivers Need to Know About FMLA: An Article by Deb Hipp Originally Posted on Senior Living Blog
If you’re a caregiver for an aging loved one, you’ll probably need to miss work at some point to help with medical treatment or unexpected emergencies.
In fact, the likelihood is so great that there is even a federal law, The Family and Medical Leave Act (FMLA), that protects your job if you need to take leave to care for a family member.
The Family and Medical Leave Act (FMLA)
The FMLA has been used more than 100 million times since its enactment in 1993, according to the U.S. Department of Labor. However, not every employer or employee is eligible, and simply relying on your employer to keep you informed may not be the best choice.
“It’s amazing what companies don’t know about FMLA,” says Robert Ottinger, an employment attorney at Ottinger Law. FMLA violations are especially common at companies with fewer than 100 employees, which may not even have a procedure in place, he says.
That’s why you need to know about FMLA and know your FMLA rights, especially if you’re a caregiver.
The Family and Medical Leave Act provides eligible employees with up to 12 workweeks of unpaid leave in a 12-month period. Employers still have to provide the same group health insurance benefits at the same premium while you’re on leave, and when you return to work, they have to give you back the same or an equivalent job.
You’re allowed to take FMLA leave all at once or intermittently in blocks of time or even by reducing your work schedule. However, not everyone is eligible.
You’re eligible for FMLA if you:
- Work for one of these covered employers:
- Public agencies; local, state and federal employers; schools; private employers who employ at least 50 employees for a minimum of 20 workweeks per year.
- Worked 1,250 hours during the 12 months prior to the start of leave.
- Work at a location where your employer has 50 or more employees within 75 miles.
- Worked for the employer for at least 12 months, although the months don’t have to be consecutive.
Even though FMLA leave is unpaid, many companies offer paid or partially paid FMLA leave as a company benefit. Also, state laws in California, New Jersey, New York (taking effect Jan. 1, 2018) and Rhode Island provide some form of paid family leave.
Once you determine your FMLA eligibility, you’ll need to find out whether your caregiving situation is covered as well.
Caregiving and FMLA
Don’t simply assume that you can take FMLA leave to care for any family member you love. For instance, you may think of your father-in-law as a second dad, but in-laws aren’t considered “immediate family” under the FMLA.
Qualifying Reasons to Take FMLA
Your employer is required to grant FMLA leave to eligible employees for:
- The birth of a child and to bond with the newborn.
- When an employee adopts or fosters a child, including providing time to bond.
- To care for an immediate family member, including a spouse, son, daughter or parent with a serious health condition. Eligibility doesn’t cover leave to care for in-laws, siblings or grandparents. However, you might be eligible for FMLA leave to care for a grandparent who was once your legal guardian or if you are the legal guardian for a disabled sibling.
- When the employee is unable to work because of a serious health condition.
- For qualifying urgent situations when the employee’s spouse, son, daughter, or parent is on covered active duty or call in the military or to care for a covered service member with a serious injury or illness.
FMLA Compliance: A Two-Way Street
Both you and your employer must comply with certain requirements when it comes to FMLA. For example, you’re required to provide your employer 30-days advance notice when the need for FMLA is foreseeable. As a caregiver, it’s best to find out your options before a crisis.
“If an employee is concerned about having to leave work at the last minute, then it’s to that employee’s benefit to let human resources know, get approved for intermittent leave and find out the FMLA policy,” says Christina Thomas Mazaheri, an employment lawyer with Morgan & Morgan.
When it comes to unanticipated FMLA time, like rushing from the office because your dad was injured in a car crash, let your employer know as soon as practicable, says Thomas Mazaheri. Even if you have to call from the emergency room, make sure you don’t wait for days without providing an explanation.
“As long as your employer knows, they shouldn’t terminate you because their obligations under FMLA would be triggered,” says Thomas Mazaheri.
At the same time, your employer can’t intentionally delay paperwork or ask for unnecessary medical information. While you’ll need to provide certification of your loved one’s medical condition, your boss isn’t allowed to pry into your life.
“Employers don’t have carte blanche to ask personal medical questions unrelated to the need for protective leave,” says Thomas Mazaheri.
That means if you request FMLA leave for your mom’s cancer surgery, your supervisor can’t ask you to hand over your mom’s psychological records. However, an employer is allowed to ask for clarification if there is reason to believe an employee is being dishonest, says Thomas Mazaheri.
What If My Employer Won’t Grant FMLA Leave?
If your company illegally denies or interferes with your FMLA request, Ottinger recommends showing your employer a print-out of the federal law. If that doesn’t work, “It’s time to call a law firm to write a quick letter,” says Ottinger.
You can file a lawsuit for FMLA violations, and if an employer illegally retaliates by firing you or changing your work conditions, you can probably also add a retaliation count. To find an employment lawyer, search the directory at the National Employment Lawyers Association.
Have you had experience with taking FMLA to care for a senior loved one? What was your experience like? We’d like to hear your stories in the comments below.
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