lawyer for fmla when employer says taking days in a pattern

Can a labor and employment attorney help with the FMLA?

Nov 02, 2009 · Wording Counts. Another of Dahlen’s anti-abuse techniques is to very carefully note what an employee is certified for. “I write “One occurrence of 3 days every 2-3 months.”. The reason I word it this way instead of just “3 days every 2-3 months,” is that people want to take three 1-day occurrences. No, it’s one up-to-3-day occurrence.

When to give 30 days notice of FMLA leave?

Learn what your employer can and can't do with regard to your FMLA leave. By Lisa Guerin, J.D., UC Berkeley School of Law. Updated: Jun 15th, 2021. The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take unpaid time off work to handle certain health and family matters. Although this important law has been on ...

What do employers need to know about the FMLA?

Under the FMLA, an employer may not count your FMLA leave against you or retaliate against you for taking advantage of your rights under the law. If your employer fires or disciplines you for taking FMLA leave, you should talk to a lawyer right away. Here are a handful of other common problems in the reinstatement process:

When can an employee take FMLA leave intermittently?

Jun 07, 2017 · An area in which employers don’t always take advantage of the FMLA regulations to hold employees accountable is the intermittent leave user with the dreaded “pattern of absences.” This employee typically has a chronic medical condition that mysteriously results in FML absences on Mondays, Fridays and the days before and after paid holidays.

What is considered abuse of FMLA?

How do I fight FMLA abuse?

What is FMLA interference?

How do you address FMLA abuse?

Can your manager question you about FMLA?

What are some of the drawbacks of FMLA?

Can your boss contact you while on FMLA?

Can an employee be disciplined while on FMLA?

Can you be fired for performance while on FMLA?

Can FMLA be revoked?

What happens when FMLA leave is over?

When your FMLA leave is over, your employer must immediately reinstate you to your former position or an equivalent position. Some employers delay reinstatement, but this is a mistake: Employees must be returned to their jobs on the day of their return, as long as they gave their employer at least two business days’ notice. And the position you are returned to must be the same in every important way to your former position, including pay, benefits, job duties, worksite, and so on.

What is FMLA 2021?

Updated: Jun 15th, 2021. The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take unpaid time off work to handle certain health and family matters. Although this important law has been on the books for more than 25 years, some employers still aren’t following the rules. This can result in a lot of stress and ...

What happens if you don't give 30 days notice?

If you need leave for a foreseeable reason and you fail to give the legally-required 30 days’ notice, your employer may postpone the start of your leave. An employer may also ask you to make reasonable efforts to schedule foreseeable leave for planned medical treatment in a way that doesn’t unduly disrupt the company’s operations.

Why do employers violate the law?

Others simply make mistakes because they don’t keep up when the rules change, their companies grow to a size that makes them subject to the FMLA, or they are too lax about paperwork and notice requirements. No matter what your employer’s motivations, ...

Do you have to reinstate your FMLA?

Although employers don’t have to continue other types of benefits (like life insurance), they must reinstate those benefits immediately when the employee’s leave is over, with no waiting period or extra hurdles for the employee. Even after your FMLA leave is up, other laws might give you the right to additional time off.

Can an employer fire an employee for FMLA?

Of course, employers may not fire employees for exercising their rights under the FMLA (although some do just that). However, more often, employers get into trouble when they discipline or otherwise punish employees for FMLA-related absences. For example, an employer might count an employee’s FMLA leave as an “unexcused” absence or as a point in a no-fault absence policy. Or, an employer might improperly count an employee’s protected time off against the employee in calculating seniority or discipline an employee for taking longer to complete work due to the employee’s protected leave.

Can you get paid for FMLA if you have a car accident?

However, if your employer requires one week of notice to use paid vacation time, you won’t get paid for your time off until a week has passed since you gave notice.

How much notice do you need to give for FMLA?

The FMLA requires you to give at least 30 days' notice of "foreseeable" leave (for example, if you have surgery planned well in advance). If you need leave for an unforeseeable reason (such as a premature birth or emergency medical treatment), you have to give only as much notice as is practical under the circumstances.

What to do if your employer violates FMLA?

If you think your employer has violated the FMLA, you should schedule a consultation with an experienced lawyer. A lawyer can review your situation, identify any legal problems in the way your employer treated you, and help you decide what to do next. For example, you might want the lawyer to coach you on how to talk to your manager, ...

What to do when FMLA leave is over?

When your FMLA leave is over, your employer can ask you to provide medical documentation that you are able to return to work. If you could return to your position but you need some sort of accommodation for your disability—a change that allows you to do your job—your employer must provide it, unless it would create an undue hardship for your employer. (This right comes from the Americans with Disabilities Act, not the FMLA.) If you feel your employer is unfairly saying you can't do the job or isn't willing to work with you to accommodate your disability, talk to a lawyer.

How does an employer violate employee rights?

Here are some common ways employers violate employee rights while employees are out on FMLA leave: Cutting off insurance. You have the right to keep your group health insurance benefits during your FMLA leave, as long as you keep paying your usual share of the premiums.

What is an equivalent position in FMLA?

An equivalent position must be nearly identical to your prior job, in duties, pay, benefits, shift assignments, work site, and other particulars. Your employer may not, for example, assign you to a different job ...

What to do if your employer asks you to come back early?

But if your employer pressures you to return early, asks you to work during your leave, or won't leave you alone, you should talk to a lawyer.

What happens if you say something to your manager?

If you say something to your manager, orally or in writing, that reasonably informs the company that you need time off for parenting or pregnancy (or another serious health condition or military family obligations), it's your employer's job to figure out that you are protected by the FMLA. Miscounting your time worked.

How to manage FMLA?

For years I have advised employers to keep three things in mind regarding managing FMLA leave: (1) Don’t lose FMLA focus; (2) Hold employees accountable; and (3) Communicate, communicate, communicate. Like it or not, managing FMLA use is a never-ending chore, and employers who slack off will pay a price.

What percentage of employers take FMLA?

And according to the 2017 Littler Annual Employer Survey, administration of intermittent Family and Medical Leave Act (FMLA) leave remains a top concern for employers. Sixty-five percent of employers identify “intermittent FMLA leave taken in an unpredictable manner” as among the most difficult accommodation requests to administer.

What is the FML regs?

The FML regs at 29 CFR Part 825.308 (c) (3) state that if an employer has information that casts doubt on the employee’s stated reason for leave, the employer may request recertification from the employee.

What is intermittent leave?

An area in which employers don’t always take advantage of the FMLA regulations to hold employees accountable is the intermittent leave user with the dreaded “pattern of absences.”. This employee typically has a chronic medical condition that mysteriously results in FML absences on Mondays, Fridays and the days before and after paid holidays.

Can you get a doctor's note saying they need FML?

You may be saying to yourself, “Big deal – most employees can get a doctor’s note saying they needed FML just about any time they want one.” And this can be true. But, by requiring the note, you are making the employee accountable, and sending a message to the employee (and other employees this person talks or complains to) that intermittent FML is not a free ride to a three- or four-day weekend. And if the employee’s health care provider charges him or her for FML paperwork, you may find your employee is missing even fewer Mondays or Fridays.

Can an employer request a recertification for FMLA?

In the example of the pattern of absences above, the employer could meet with the employee and tell him or her that the pattern has been noticed, the FMLA regs allow the employer to request recertification any time FMLA is used on a ‘pattern day’, and the next time it occurs, he or she must provide a doctor’s note affirming that FML was needed on that day. Doing this may stop the pattern and eliminate the need to request recertification altogether.

How many weeks of FMLA can you take?

An eligible employee may take all 12 weeks of his or her FMLA leave entitlement as qualifying exigency leave or the employee may take a combination of 12 weeks of leave for both qualifying exigency leave and leave for a serious health condition.

How long does Janie take FMLA?

Janie takes six weeks of FMLA leave for a cancer operation and treatment and gives her employer a medical certification that states that she will be absent for six weeks. Because her certification covers a six-week absence, her employer cannot ask for a recertification during that time.

How long does FMLA leave last?

Additionally, they may take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered servicemember with a serious injury or illness.

How many miles does an employer have to work to qualify for FMLA?

work at a location where the employer has 50 or more employees within 75 miles; and. have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave.

How many weeks of unpaid leave can an employer give an employee?

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12 month period for one or more of the following reasons: for the birth of a son or daughter, and to bond with the newborn child;

Where do employers have to post FMLA notices?

Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the Wage and Hour Division. An employer that willfully violates this posting requirement may be subject to a civil money penalty for each separate offense. For current penalty amounts, see www.dol.gov/agencies/whd/fmla/applicable_laws . Additionally, employers must include this general notice in employee handbooks or other written guidance to employees concerning benefits, or, if no such materials exist, must distribute a copy of the notice to each new employee upon hiring.

What happens if an employee fails to submit a properly requested medical certification?

If an employee fails to timely submit a properly requested medical certification (absent sufficient explanation of the delay), FMLA protection for the leave may be delayed or denied. If the employee never provides a medical certification, then the leave is not FMLA leave.

How long do you have to give notice of FMLA?

The worker usually must provide 30 days of notice when the cause for the leave is predictable; however, if it is not predictable, the employee must provide notice as soon as possible. The employee must provide sufficient information to allow the employer to reasonably determine whether the FMLA applies to their request for leave.

How many weeks of FMLA can you get?

Find out if you are eligible for an FMLA lawsuit. The Family and Medical Leave Act (FMLA) of 1993 mandates that covered employers offer as many as 12 weeks of unpaid leave without jeopardizing the job status of eligible employees for various family and individual medical situations.

What happens if an employer discriminates against an employee for seeking benefits guaranteed under the FMLA?

If an employer discriminates or retaliates against an employee for seeking benefits guaranteed under the FMLA, the employee may be eligible to receive further compensation through a discrimination lawsuit.

How many hours do you have to work to qualify for FMLA?

Employees are eligible for FMLA benefits if they work for a covered employer, have worked for the employer for a total of 12 months, have worked at least 1,250 hours over the previous 12 months, and work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.

What is unpaid leave?

Unpaid leave must be awarded for the following: Caring for the employee's baby after birth or putting the child up for adoption or foster care. Caring for the employee's spouse, children, or parent with a serious health condition. Addressing a serious health condition of the employee.

Who is covered by FMLA?

Covered Employers and Employees. The FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), and private-sector employers who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers, ...

Is it illegal to refuse an FMLA?

Under FMLA regulations, it is illegal for the employer to: Interfere with or refuse any rights available to the employer under FMLA. Fire, retaliate, or discriminate against an employee for opposing any practice deemed unlawful by FMLA or for inclusion in any proceeding relating to FMLA.

Does Johnny's doctor rubber stamp his absences?

Eight times out of 10, Johnny’s doctor simply will rubber stamp Johnny’s pattern and confirm that these absences are related to his bad back. Right? That goes without saying. But 20 percent of the time, you strike gold — in other words, Johnny’s doctor will respond with something to the effect, “I said three times/mo. for one day each, and I meant that! No soup for you !” Well, it’s never that neat, but you know what I mean — the physician will indicate that Johnny’s Monday/Friday pattern somehow is not consistent with his need for FMLA leave.

Does one absence over frequency trigger recertification?

If you have been involved in a DOL FMLA investigation over the past couple of years, you also know quite well that the DOL takes the position that “one” absence over the frequency indicated in the medical certification does not constitute a significant enough change to trigger recertification. In taking this position, the DOL employs the reason I identified above. Bottom line, the agency argues that the certification is just an estimate, and one absence over frequency does not trigger the recert process.

Why is FMLA so hard to stop?

FMLA abuse is a problem many employers face. They feel it is difficult to stop because there are so many laws which protect employee rights. The biggest culprit seems to be intermittent leave. 66 percent of Human Resource professionals said they were having problems with chronic abuse of intermittent leave.

What happens when you cover for coworkers who are abusing FMLA?

When employees at a company have to frequently cover for co-workers that are abusing FMLA, it can take a significant toll on both productivity and morale.

What is intermittent leave?

Intermittent leave is when employees take leave for one specific reason that qualifies for FMLA, but instead of taking it all at one time, they spread the leave throughout different periods of time. A lot of employers hesitate to pursue workers even when they are blatant about abusing their leave, just because FMLA is a tricky issue to handle.

What are the problems with FMLA?

The two main problems are: 1 FMLA regulations don't specify a minimum amount of time that employees can take for intermittent leave. 2 The medical conditions that are most often associated with intermittent leave can be difficult to prove, as with migraines.

What is absent pattern?

Absence patterns — when employees are often absent on days that extend their scheduled time off.

Can you use FMLA to go on vacation?

Employees are even allowed to use FMLA leave to simply go on vacation with the invalid , in order to attend to the usual necessary nutritional, hygienic, and basic medical needs. Although employers need to walk a careful line when dealing with FMLA abuse, there are steps which can be taken to alleviate the problem.

Can you call in sick for FMLA?

Require Call-In — Employers may insist that regular call-in policy apply to FMLA leave. Barring extraordinary circumstances, a company could deny employees FMLA leave if they do not call in sick. Many people will hesitate to abuse their FMLA privileges once they know they are required to call every single day they are off work.

How long can you work after FMLA?

The Family and Medical Leave Act (FMLA) gives qualifying employees approximately 12 weeks of unpaid time off to handle family caregiving and medical issues. You should be able to return to your job after leave with zero repercussions. However, employers don’t always honor their obligations under the FMLA.

What to do if you believe your FMLA rights are being violated?

If you believe your FMLA rights are being violated, call an employment lawyer. You have to act fast in these cases, as there are frequently stringent statutes of limitations involved. Call us at 267-273-1054 or email us at murphy@phillyemploymentlawyer.com for a free, confidential consultation today.

What happens if your employer doesn't give you FMLA?

3. Your Employer Denies or Delays Your Leave.

How much notice do you need to give for FMLA?

Your employer can ask you to schedule medical treatments at a time that isn’t too disruptive to your job, or give 30 days’ notice when your reason for needing FMLA leave is foreseeable. However, problems arise when your employer tries to delay or deny your FMLA leave in other scenarios where it doesn’t have a right to.

What happens when you leave your job?

When you’re done with leave, your employer is required to return you to your previous job, or an equivalent job. Everything—including your job duties, location, benefits, and pay—should be the same or equivalent. If that’s not the case when you return, your employer may be violating your rights.

How much notice do you have to give to leave a job?

For instance, if your reason for leaving is something foreseeable, the law stipulates that you have to give 30 days’ notice unless that’s unworkable. However, there are two ways employers break this rule. The first is by requiring you to give more notice than the law allows—like 60 days.

Do you have to use FMLA to request leave?

You don’t have to specifically use the term “FMLA” to request FMLA leave. An employer should look at your request and realize what category your leave falls under, based on the circumstances. 2. Your Employer Requires an Inappropriate Amount of Notice. Employees have certain obligations under the FMLA.