Part 1 on the subject of Employment Family and Medical Leave focuses on the general scope of protection afforded eligible employees at a federal and state level. Part 2 expands on the definitions of son, daughter, parent, or spouse in regards to the federal Family and Medical Leave Act (FMLA). In addition, it addresses what constitutes a “serious health condition,” and explains the scope of leave upon the birth, adoption or placement of a child.
Even the most dedicated worker may be faced with a sudden shift of work-life priorities as a result of a family or medical emergency. A birth or adoption in the family, an illness, death, the need to temporarily care for a family member, military leave, or a domestic violence situation affecting the household, among other reasons, can trigger the demand for time off work to tend to these critical life situations.
The Family and Medical Leave Act (FMLA) became effective in 1993 to help balance workplace demands with specific family and medical needs of the eligible employees of covered employers. In addition to federal law, Florida law and enacted local ordinances apply in specific circumstances to follow the federal FMLA and even broaden its benefits.
Family Medical Leave Act (FMLA)
Under the FMLA, eligible employees may take up to 12 workweeks of unpaid leave in a 12-month period for one or more specific reasons.
- The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;
- To care for a spouse, son, daughter, or parent who has a serious health condition;
- For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
- For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.
In addition, eligible employees may take up to 26 workweeks of unpaid leave during a “single 12-month period” to care for a covered service member with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the service member.
The FMLA only applies to the following employers:
- A private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
- A public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
- A public or private elementary or secondary school, regardless of the number of employees it employs.
Employees eligible for FMLA coverage are those who:
- Work for a covered employer;
- Have worked for the employer for at least 12 months (do not need to be consecutive);
- Have provided at least 1,250 hours of service to the employer during the 12 month period immediately preceding the leave; and
- Work at a location where the employer has at least 50 employees within 75 miles.
Notice, paid leave or leave substitution, and reinstatement
The leave is subject to pre-approval by the employer upon advanced notice by the employee. Also, FMLA leave is unpaid leave and an employer is not required to pay an employee while on FMLA leave. However, an employee may elect, or the employer may require the employee (under the employer’s policy) to use any accrued paid leave (e.g., vacation or sick leave) for some or all of the FMLA leave period. This also applies to maternity or pregnancy disability leave. If an employer properly notifies the employee when the leave period begins, paid leave can be substituted for unpaid FMLA leave, and it may be counted against the 12-week leave right afforded by the FMLA.
Once an employee returns to the workplace after the leave, he or she must be restored to his or her original job or to an equivalent job. The employee’s salary, benefits, group health insurance, and other terms and conditions of employment must also be preserved upon return.
Similar to other Department of Labor (DOL) regulations, a covered employer must post conspicuous information regarding FMLA in the place of employment and may not interfere with, restrain, or deny the employee’s access to the rights afforded under FMLA. An employer may not discharge, discriminate, or retaliate against any individual for being opposed to an employment practice, or because of their involvement in any FMLA-related proceeding.
If the employer refuses or fails to comply with the law, the employee may file a complaint with the Wage and Hour Division (WHD) of the DOL or may file a private lawsuit. A victim of an FMLA violation may recover money damages including back and front pay, as well as liquidated damages (if the employer cannot prove that they acted in good faith when committing the violation.) The victim can also recover attorney’s fees and costs and be granted injunctive relief to compel the employer to comply with the law.
Florida Family and Medical Leave Laws
The Florida Domestic Relations Law provides employees who have suffered domestic or sexual violence, or who have a household or family member who is a victim of domestic or sexual violence, with up to three days off in a 12-month period for the purposes of dealing with the domestic or sexual violence incident. This includes securing medical care or counseling, arranging for relocation or security, and seeking legal redress. The leave can be paid or unpaid, at the discretion of the employer. The law applies to private employers with 50 or more employees and to employees who have been employed for three or more months.
In addition, the Florida Parental and Medical Leave Law allows covered public employees to take up to 6 months of leave for qualifying conditions including a serious family illness, accident, disease, or condition that poses imminent danger of death, among others. It also provides for medical leave for mental health conditions requiring in-home care. Covered public employees can also take parental leave for the birth or adoption of a child. Upon return to work, employees must be reinstated to the same or an equivalent position with equivalent pay and preserve all benefits.
Employers covered by FMLA and Florida law and eligible employees can benefit from consulting with a knowledgeable employment attorney to learn their rights and responsibilities under FMLA and state law. Covered employers must avoid becoming vulnerable to administrative, individual, or collective action by not having a proper family leave policy and must know how to properly manage the compliance and defense for alleged FMLA violations. Workers should understand their eligibility and legal rights and learn how to request leave when afforded by law and how to take action in light of any employer violation. Employees have up to two years to bring a suit in court for an employer’s FMLA violation, and although this time may be extended if there is a willful violation, time is of the essence in properly addressing a claim.
Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you with a family and medical leave compliance situation and offer legal representation, if necessary. Click here to contact an attorney now.
 There are specific provisions for military members under the FMLA, including the treatment of the 12-month leave period. See the Employment Rights of Military Veterans blog article for more information.
 If there is a break in service lasting seven years or more, the time worked prior to the break will not count, unless the break is the result of military service (see the Employment Rights of Military Veterans blog article for more information), or there is a written agreement, including a collective bargaining agreement, outlining the employer’s intention to rehire the employee after the break in service.
 Airline flight crew employees are subject to special hours of service eligibility requirements.