Do You Get Paid While on FMLA Leave?

All Governmental Employers Must Provide FMLA

Florida employers are required to comply with the federal Family and Medical Leave Act (FMLA), which allows certain eligible employees to take unpaid leave, and to be reinstated following that leave. For employees who have worked for a local, federal or state governmental agency for at least 12 months (and at least 1,250 hours during the past 12 months), FMLA is available in the following situations:

• An employee has a serious health condition that has made him or her unable to perform regular job duties. This also includes the time when an employee is out on short-term disability or Workers’ Comp.
• An employee who has just had a baby or adopted a child, or an employee who provides foster care for a child.
• An employee who has a serious health condition, or whose spouse, children, or parents have a serious health condition.
• An employee who qualifies for active duty family leave, and injured service member leave.

The above types of FMLA are available for a period of up to 12 weeks of leave during any 12-month period, or 26 weeks to care for a covered service member who has been diagnosed with a serious illness or injury. The employee is required to request FMLA leave as soon as is practicable, unless a medical emergency prevents advance notification. During FMLA leave for state employees, health, life and supplemental insurance benefits will continue so long as the employee continues to pay his or her portion of those benefits. Employees who have accrued leave credits may qualify for paid leave, while employees with no accrued leave credits may still take FMLA leave, but it will be unpaid. So long as the state employee returns to work before the end of the FMLA leave, he or she will return to either a former position or one which is equivalent in benefits, status and pay.

Other Employers Bound by FMLA

Aside from governmental agencies, those employers who meet specific criteria are also bound by FMLA rules. These criteria include:

• Any company in the private sector that had at least 50 employees for at least 20 weeks in the prior year or in the current year, or
• Any school (private or public), no matter the number of employees.

Employees Who are Eligible for FMLA

Eligible employees who can request and receive FMLA include:

• Any person who has worked for his or her employer for at least twelve months;
• Any person who has worked for a minimum of 1,250 hours during the twelve months which precede the requested leave, and
• Any person working at a business that has a minimum of 50 employees within a 75-mile radius.

Airline flight crew employees are bound by special hours of service eligibility requirements including the fact that the required 12 months of employment are not required to be consecutive as they are with other employers. This allows airline employees who work seasonally to still meet the 12-month requirement. If there has been a break in service of an airline employee which was seven years or longer, the time period preceding that break in service will not be counted when a request for FMLA leave is submitted unless the break in service was the result of Uniformed Services Employment or a written agreement exists.

When Employees Can Take Intermittent or Reduced Schedule FMLA

In some cases, an employee can take leave in separate blocks of time or may be able to work a shortened work day each day, if a single, qualifying reason exists. As an example, a father who is taking FMLA leave after the birth of his son or daughter may need to take mornings off for a period of time in order to allow the mother time to rest. Or, perhaps an employee takes care of his or her ill parent, switching off with other siblings so that the employee needs to be off work in four-hour blocks.

When Leave is for a Planned Medical Procedure

If FMLA leave is for a planned medical procedure, the employee is required to make a reasonable attempt to schedule the procedure in a way that disrupts the employer’s workplace as little as possible. Employers are, in some cases, allowed to request that employees substitute accrued paid leave (vacation time or sick leave) to cover at least a portion of the requested FMLA leave period. As far as whether an employee can choose to use accrued paid leave as a supplement to FMLA or as a part of FMLA leave, the terms and conditions of the leave policies will dictate the answer to that question.

In any case, employees are required to comply with the normal requirements regarding leave, and must ensure they provide sufficient information to the employer so that the employer can determine whether FMLA applies. If the leave is foreseeable, an employee is generally required to request the leave at least 30 days in advance. When the leave is not foreseeable, or is the result of an emergency, notice must be given as soon as possible.

Are You Required to Expressly Mention FMLA When Requesting Leave?

It would seem that an employee would ask for FMLA leave specifically, but in fact the employee is not required to assert his or her FMLA rights or even mention the term FMLA. Employers are required to post notices pertaining to FMLA leave, which include the employees’ and the employer’s rights and responsibilities. It is the employer’s responsibility to notify the employee of his or her eligibility for FMLA leave, including the amount of that leave which will be deducted from FMLA leave, the amount which may be taken from the employee’s accrued leave, and how much, if any of the leave will be paid.

Can Employees Be Required to “Prove” Their Illness or Medical Condition?

If an employee is taking FMLA leave due to a serious medical condition or illness, or due to a family member’s serious medical condition or illness, the employer may legally request certification which supports the illness or medical condition. The employer is also allowed to require the employee to obtain a second and third medical opinion, although the employer must pay for these medical opinions.

For a serious health condition, such as cancer or a heart condition, the employer may, from time to time, require recertification from the employee of the condition. For the employee who is struggling with his or her own illness or serious medical condition or that of a close family member, having to “prove” they are telling the truth about the condition can feel very invasive and insensitive, however. in order to qualify for FMLA leave this may be a requirement.

Will Your Job Be Waiting for You When You Return from FMLA Leave?

Many people are fearful of taking their FMLA leave, even though they are legally entitled to do so. They may be afraid of being pushed out of their prior position when they return or believe that they will be treated differently by their employer and co-workers when they return. Under FMLA, employees must be either returned to their original job, or they must be placed in a job that is equal to their original job in pay, benefits, status, and any other conditions of employment. The employee who rightfully takes FMLA leave cannot be penalized in the case of a “no-fault” attendance policy, and he or she is entitled to continued participation in group health insurance coverage as if no FMLA had been taken.

Does FMLA Cover Maternity Leave in the State of Florida?

Many states have enacted their own laws giving new parents and pregnant women the right to take time off, but Florida is not one of these states. Despite this, expectant parents and new parents in the state may be able to take FMLA leave if they meet the qualifications listed above. FMLA leave is UNPAID for maternity leave, new parent leave, and most other types of leave, however, the employee may be able to use some of their accrued paid leave in order to continue to receive a paycheck for at least a part of their 12 week FMLA leave.

Pregnant women are allowed to use FMLA leave for periods in which their pregnancy has left them incapacitated (severe morning sickness) or when a physician has put them on required bed rest. New parents are allowed to use FMLA leave after the birth of a child or the adoption of a child to care for and bond with the child. FMLA covers foster children, adopted children, and biological children. Unfortunately, for married parents who both work at the same company, FMLA leave is limited to a combined total of 12 weeks, although if the pregnant woman takes FMLA leave for a health condition prior to the birth, it is counted separately.

Although the Pregnancy Discrimination Act does not require that employers provide pregnancy or parental leave (apart from FMLA), if the employer gives leave for other disabilities, then he or she must make the same leave available to pregnant mothers who are unable to work during their pregnancy due to illness or required bed rest. In other words, if an employee in a company is entitled to short-term paid leave in the event he or she suffers a heart attack, then the company must grant short-term paid leave to a pregnant woman who is suffering adverse health effects related to the pregnancy. Further, a Florida employer may not fire or demote a female employee because she is pregnant. The employer may not require a pregnant woman to stop working so long as she has shown she is physically able to continue doing her normal job.

Florida Domestic Violence Leave

In addition to the rights employees have under FMLA laws, in the state of Florida employees may take time off to deal with issues related to domestic violence. Any employer who has at least 50 employees is required to allow employees who are dealing with domestic violence or sexual violence, or those who need to assist a family member who is dealing with domestic or sexual violence, to take up to three days off during a 12-month period. Employees dealing with domestic violence may need to consult an attorney, move from their home to a safer place, seek help from a women’s shelter or rape crisis center, obtain an injunction against the person who committed the act of domestic violence, or receive counseling or medical care related to the domestic violence.

Qualifying FMLA Leave—Unpaid in Most Cases

In most all cases, FMLA leave is unpaid, barring a private agreement between the employee and employer. Further, employers can require employees to use any accrued vacation or sick leave time during their FMLA leave. In short, the FMLA allows employers to require that the employee exhaust paid leave when taking FMLA. It is also worth noting that while an employee is away on FMLA leave, no seniority or vacation time will accrue—the service time essentially “freezes.” Because FMLA is largely unpaid, most of those who take FMLA end up cutting the time short, even if they would prefer to be home with their new baby longer, take care of a sick parent longer, or if they are ill and still not feeling well, but feel obligated to return to work simply to begin getting a regular paycheck once more.

Employees of the state of Florida are entitled to as much as six months of parental or family leave for any of the following conditions:

• Pregnancy;
• A spouse’s pregnancy;
• Adoption of a child, and
• A serious family illness including an accident, a disease posing an imminent danger of death, an organ transplant, a limb amputation or similarly severe medical procedures, and mental or physical conditions that require in-home care.

State employees are also allowed to take one hour of administrative leave per month for activities involving their children in a daycare, preschool, kindergarten, elementary school, middle school, or high school setting. State employees may also take unpaid family leave—aside from FMLA leave—to care for elderly parents, relocate children to a new school, settle a parent’s estate after his or her death, visit family members who live a considerable distance away, or to deal with other “family responsibilities.”