Employees and the companies or agencies they work for harbor many misperceptions about what the Family and Medical Leave Act (FMLA) allows and requires. Close to the top of this list of mistaken beliefs, and what often appears to stop workers from exercising their rights under the FMLA, is that all available unpaid leave must be taken at one time.
What is the difference between continuous and intermittent FMLA leave?
In reality, FMLA leave can be taken in increments of hours, single days spread over consecutive weeks, or as a few consecutive days here and there. In general, for foreseen medical leaves, an employee will have their healthcare provider complete a certification that will inform the employer of the information the employer is entitled to know about the leave.
Employers cannot insist that employees use all their 12 weeks of FMLA continuously. Also, while an employer is allowed to ask for certification from an employee’s healthcare provided, the company or agency cannot generally refuse the request if the employee has a legitimate need.
Other questions will naturally arise even when both employees and employers fully intend to comply with the rules for intermittent or continuous FMLA leave. For instance:
Is the employer required to offer FMLA medical leave?
Generally, yes, unless the employer is a privately-owned business or privately-operated nonprofit that employs fewer than 50 people.
When does an employee qualify to request intermittent or continuous FMLA leave?
Basic FMLA eligibility starts when a person has worked for the same employer for 12 consecutive months if the employee has put in at least 1,250 hours of paid work during that year.
How must FMLA leave be accounted for when it comes to calculating benefits like paid leave eligibility based on tenure?
Unless certain circumstances exist, an employee continues accruing tenure-based benefits while he or she takes continuous FMLA leave. This includes annual raises and consideration for training and promotion opportunities.
How soon before going on foreseeable FMLA leave must an employee submit his or her request?
Employees must give at least 30 days advance notice for foreseeable leave. If 30 days advance notice is not possible, the employee must provide as notice as soon as possible and practicable.
Can an employee who takes a full 12 weeks of continuous FMLA leave be reassigned when he or she returns to work?
Continuous FMLA leave can taken only when certain circumstances exist. This question demands more than a one- or two-sentence answer, and it often exists at the heart of wrongful termination cases. An employee or employer with concerns about a reassignment after a long stretch of unpaid leave should consult with knowledgeable Ohio FMLA attorneys.
Can an employee request continuous FMLA leave even if he or she does not have unused paid time off remaining?
Yes. An employee’s job is protected for 12 weeks. If the employee has paid time off, the employer may require the employee to exhaust the PTO during the FMLA leave, but to the extent the employee runs out of PTO, then the employee may continue on unpaid leave.
This brief blog post only addresses a handful of the issues that can arise when an employee asks to use intermittent or continuous FMLA leave. Please contact Ohio employment attorneys to discuss your particular concerns. You can schedule a free and confidential consultation by connecting with us online or by calling (614) 949-1181.