Last updated Nov. 28, 2017.
The federal Family and Medical Leave Act (FMLA) grants qualifying workers twelve (12) weeks of unpaid leave for childbirth/newborn childcare, for a worker’s own serious health condition, or for the care of a worker’s immediate family member with a serious health condition.
The FMLA’s most powerful aspect is that it grants workers job protection, making it illegal for employers to terminate or otherwise retaliate against you for taking your entitled leave. However, contrary to what many workers believe, these laws do not protect your employment automatically or indefinitely.
Here are three common misconceptions about the FMLA that directly impact your job security.
1. Don’t Confuse Disability Benefits with FMLA
If you become sick or injured, you may find yourself applying for and receiving state disability benefits. Specifically, the New Jersey Temporary Disability Benefits Law provides for cash benefits to be paid to qualifying individuals who cannot work due to a sickness or injury that is not job-related (for job-related sickness or injury, workers’ compensation is available). Eligible individuals may receive up to twenty-six (26) weeks of benefits, which are calculated as a percentage of the employee’s average weekly salary up to a maximum cap.
While these temporary disability benefits may serve as financial life support while you are unable to work, they do not protect your job. Many workers incorrectly believe that as long as they are receiving disability checks from the state, they cannot be fired. In truth, only the FMLA confers job protection — but only to qualifying individuals, for a maximum of 12 weeks.
To protect yourself, the wise course is to:
- apply for FMLA leave concurrently with temporary disability benefits; and
- if at all possible, limit your leave to under 12 weeks.
Beyond 12 weeks, your employer has no legal obligation to hold your job open for you. And if you do take more than 12 weeks of leave, just realize that those disability checks provide you with a cash infusion — nothing more.
2. Don’t Assume You’re Automatically Protected
Many workers mistakenly think that, once employed, they automatically qualify for FMLA leave. That is not the case.
There are threshold eligibility requirements that you may or may not meet. Most importantly:
- You must work for a covered employer, meaning a business that employs at least 50 workers.
- You must have worked for your employer for at least 12 months. This means that if you are hired in January, and become gravely ill in December, you are not entitled to FMLA leave at that point. Your employer may have sick leave or some other form of internal leave available to you; however, unlike the FMLA, it will not confer job protection.
- If a part-time employee, you must have worked at least 1,250 hours in the 12 months preceding your FMLA leave in order to be eligible.
3. Don’t Miscalculate Your 12 Weeks of Leave
Perhaps the most common misconception workers have about FMLA leave stems from how their total leave is tallied. The FMLA gives you the right to 12 weeks of unpaid leave during a 12-month period.
How is that 12-month period defined? That depends entirely upon your employer, and in some cases, which state you live in and if the state has its own family or medical leave statute.
Under the FMLA, employers have four options for determining their 12-month period:
- the calendar year;
- any fixed 12-month “leave year,” such as a fiscal year, a year required by state law, or a year starting on the employee’s “anniversary” date;
- the 12-month period measured forward from the date any employee’s first FMLA leave begins; or
- a “rolling” 12-month period measured backward from the date an employee uses FMLA leave.
While these options seem straightforward enough, they can result in big differences in the amount of leave you are allowed.
FMLA Denied: An Example
Take this imaginary scenario for example. You are a pregnant female worker with a due date scheduled for the first week of December 2017. You want to take 12 weeks of FMLA leave immediately following the birth of your child. However, due to serious pregnancy complications, you are forced to take FMLA leave for 6 weeks in August-September of 2017.
If your employer calculates the 12-month period using the calendar year, then congratulations! For calendar year 2017, you have taken 6 weeks of leave in August/September, leaving you 4 weeks of December for additional leave. Because a new calendar year begins in January 2018, you can then take your additional 8 weeks of FMLA leave beginning in January.
If your employer calculates the 12-month period by measuring forward from the first day you use FMLA, however, you are out of luck. You took 6 weeks of leave beginning in August 2017, leaving you only 6 additional weeks of leave until August 2018. As such, you will only be allowed 6 weeks of leave after the birth of your child.
Given the above, it is critical that you know how your employer calculates the 12-month FMLA period. It is also critical that you understand you are only entitled to 12 weeks FMLA leave per every 12-month period — NOT per every medical emergency or injury. This information and knowledge can make all the difference in determining how much leave to take and when to schedule it.
Seek Help from an FMLA Lawyer
The FMLA statute is complicated and has many individualistic factors that can affect your rights and eligibility. Make sure to consult with a qualified employment attorney if you need to take time away from work for a medical or family issue.
If you believe you’ve been wrongfully denied FMLA leave, or retaliated against for taking any leave to which you’re legally entitled, contact Zatuchni & Associates and talk with an attorney to understand your rights. Our firm is experienced in litigating and negotiating claims stemming from violations of FMLA and other leave laws.