David G. Schiller represents North Carolina employees in a wide range of employment law cases — including the Family and Medical Leave Act (FMLA).
The primary purpose of the FMLA is “to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious medical condition. . .”
Benefit to the Employee
An eligible employee is entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following reasons:
(1) because of the birth of a son or daughter of the employee;
(2) because of the placement of a son or daughter with the employee for adoption or foster care;
(3) in order to care for the spouse, or a son, daughter or parent of the employee if such son, daughter or parent has a serious health condition;
(4) because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
An eligible employee is “an employee who has been employed (i) for at least 12 months . . . ; and (ii) for at least 1,250 hours of service with [the] employer during the previous 12-month period.”
An eligible employee does not include some federal employees or “any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.”
Serious Health Condition
A “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves – (A) inpatient care in a hospital, hospice; or residential medical care facility; or (B) continuing treatment by a health care provider.”
The employer may require the employee to provide a medical documentation from a health care provider before approving the employee’s leave.
An employee is unable to perform the functions of the position “where the health care provider finds that the employee is unable to work at all or is unable to perform any on of the essential functions of the employee’s position within the meaning of the Americans with Disabilities Act [ADA].”
Any employee who returns from FLMA leave is entitled to (1) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (2) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” There are, however, exceptions for certain “key employees.”
It is unlawful for an employer to interfere with, restrain, or deny the employee from exercising or the attempt to exercising any right under the FMLA. Also, it is “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful” by the FMLA.
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