Fort Worth employment lawyer Adam Kielich presents five FMLA myths employees often wrongly believe. Learn more about what FMLA doesn't protect so you can better use your FMLA rights for what it does protect. Learn more with this presentation and then visit http://kielichlawfirm.com for more information.

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Five FMLA Myths

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Authored by:
The Kielich Law Firm
2205 Martin Drive, Suite 200-K
Bedford, Texas 76021
KielichLawFirm.com

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Intro
As an employment attorney I deal with my fair share of FMLA cases
for clients (probably more than my fair share for the amount of
calls I get from around Dallas and Fort Worth). Among those
FMLA claims I see what happens when employers violate an
employee’s FMLA rights because the employer was ignorant of
FMLA regulations or had seriously wrong misconceptions about
FMLA. I also get plenty of calls from employees who believe their
employer has violated their FMLA rights but no rights have been
violated because the employee himself or herself misunderstood
his or her rights under FMLA. Today’s post is a helping of
debunking those myths so people can better understand their
FMLA rights and recognize a violation of FMLA when they see it.

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Myth #1
• My employer has to approve FMLA leave when I
ask for it.
Under the Family Medical Leave Act, you cannot be denied FMLA leave if (1) you are an eligible
employee (2) of a covered employer (3) requesting leave for a reason covered by FMLA (4) and
you have provided sufficient information for your employer to determine that you have made a
request for medical leave that is covered by FMLA (5) and the request has been made thirty days
prior to the required leave (or as soon as reasonably possible if thirty days notice cannot be
provided) and (6) you have not already exhausted your protected leave for the current twelve
month period. (You can learn more by visiting this page about FMLA.) If you do not meet each of
those conditions then your employer can and probably will deny your request for FMLA leave.
Employers do not have discretion to deny FMLA leave (with some rare exceptions for intermittent
leave) when a proper request is made but they do not have to approve every request merely
because it is turned in on an FMLA form. When you apply for FMLA, your employer is permitted to
seek certification of the serious medical condition and sufficient information must be produced
before the employer must approve an otherwise valid request for FMLA.

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Myth #2
• My employer cannot make me use paid leave
with FMLA
Your employer definitely can. FMLA specifically permits employers to require employees
to exhaust paid leave time (vacation pay, sick pay, personal days, etc.) during FMLA
leave. FMLA is not designed to protect paid leave periods so if the statute required
employers to give FMLA leave on top of paid sick leave then we likely would have
seen employers reduce paid leave time to account for FMLA unpaid leave. It usually
works out for employees to use paid leave during some or all FMLA leave to keep
receiving paychecks during a medical leave. You may be eligible for short term
disability from your employer for your FMLA leave, if your employer offers STD and
your leave qualifies for the STD plan’s benefits. Employers are not required to
exhaust paid leave time during your FMLA leave but if it is your employer’s policy
then there is no claim against the employer for following its own policy.

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Myth #3
• Once approved for FMLA I can take sick time for
my medical condition whenever I want.
If you have approval for FMLA leave then your protected leave time is limited to the
leave periods approved by HR or whoever in your company approves FMLA
requests. If you have to leave work for the medical condition that led to your FMLA-approved
leave but it is not during your FMLA-approved leave time then you are
generally subject to the employer’s leave policy and not FMLA protections. If the
additional leave time is unforeseen then you need to make a request for approval of
that additional time under FMLA to gain the same protections. If you need sick leave
for any other medical condition then it is not protected by your original FMLA request
and you need to make a new request for the other sick leave time.

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Myth #3
If you are approved for intermittent FMLA leave the rules are slightly different. Your
intermittent leave may be at unforeseeable times (such as an episodic medical
condition) and you cannot schedule intermittent leave or you may be approved for
leave beyond any scheduled leave periods. If this is the case then you can take
leave as appropriate for your medical condition provided that your FMLA leave
requests legitimately relate to the medical condition for which you requested FMLA
leave and you follow your employer’s normal call-in procedures (at least to the
extent physically possible) for each intermittent leave period.
What you cannot do is use FMLA-approved leave to give yourself extra sick leave or an
extra day on your vacation.

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Myth #4
• Once I am on FMLA leave my employer cannot
communicate with me.
No, your employer has some opportunity to communicate with you during leave periods.
If you have approved intermittent leave then you must follow your employer’s call-in
procedures to notify them of your leave time. Additionally, if you are on a continuous
FMLA leave period then your employer can contact you to inform you that you must
recertify your FMLA leave. Recertification means your employer is requesting that
your treating physician provide an update that confirms you still require leave time
for the same medical conditions. Employers can also contact you within reason
about work issues.

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Myth #4
There are specific rules about the timing of recertification requests. If any type of FMLA
leave may extend beyond a single year (as the employer calculates the twelve
month period for FMLA) the employer can request annual recertification. An initial
certification that does not designate a specific leave period will allow the employer to
request recertification every six months for absences. (If you are approved for FMLA
but do not take any absences for the FMLA-approved reason when the employer is
limited to the annual recertification.) If your FMLA request is for a defined period of
time then the employer generally must wait until the end of the minimum time
duration in the initial certification to request recertification. Your employer may
request recertification every thirty days after the minimum duration is exhausted.
The employer can also request recertification in less than thirty days if you request
an extension of FMLA leave, the circumstances that led to the previous certification
have changed considerably, or the employer receives information that causes it to
doubt the employee’s stated reason for the absence or the continuing validity of the
medical certification. Note that employers cannot request certification if the reason
for FMLA leave is to bond with a newborn child (maternity leave/paternity leave) or
to adopt a foster child.

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Myth #4
Employers typically send requests for recertification by mail and often send letters
notifying the employee of the looming return to work to give the employee the
opportunity to recertify or prepare to return to work. These letters are certainly
permitted under the employer’s right to request recertification, so long as the letters
are sent at appropriate intervals and do not threaten an employee with adverse
consequences for taking FMLA leave (other than the employer’s options when
FMLA leave has been exhausted and your job is no longer protected by FMLA if you
take continued leave). Employers do not have to send these communications by
mail. They can come by email or simply by making phone calls.

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Myth #4
Employers can also contact you within reason about work issues. It is considered a
“professional courtesy” to answer these communications when the communications
are infrequent and do not meaningfully interfere with your leave. There is no hard
and fast rule how frequent the communications can be or what subjects can be
discussed except your employer cannot contact you to threaten your job for taking
leave. That is never acceptable when your leave is FMLA-protected. However, at a
certain point your employer’s communications can be considered FMLA interference
and that can give you a claim against your employer. For that reason employers are
typically very careful about communicating with you while you are on leave beyond
those recertification requests.

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Myth #5
• My employer has to put me back in my same job
after my FMLA leave ends.
Not necessarily. If you return to work by the end of your FMLA-protected leave then your
employer must return you to the same position or an equivalent position with the
same benefits, responsibilities and conditions of employment. If you are placed in a
different position then you really need to pay attention to how equivalent the new job
is to the one you held prior to your leave. The job does not have to be identical in
every way but it needs to be essentially the same (or better) benefits, responsibilities
and conditions of employment. Whether the new job is equivalent is heavily
dependent upon the particular merits of each job. There is no bright line test to
determine how different the jobs can be. Often the more important issue is whether it
is worth souring your relationship with your employer over minor differences in
position. However, if the positions are significantly different then your employer may
be violating your rights under FMLA and you may have claims against your
employer.

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For more information
For more information about your FMLA and other
employment rights, visit The Kielich Law Firm
online at http://kielichlawfirm.com