Under the Family and Medical Leave Act (FMLA), a private employer with at least 50 employees must give qualified employees 12 weeks of unpaid leave each year for certain medical and family reasons, such as the adoption or birth of a child or to care for a serious health condition of the employee or an immediate family member. In order for an employee to be eligible for FMLA leave, he or she must have worked for the employer for at least one year and worked for at least 1250 hours during that year.

There are situations, however, in which an employer may delay or deny such leave. For example, if the reason for the FMLA leave is known or foreseeable, the employee must provide the employer with at least 30 days’ notice prior to taking the leave. If the employee fails to do so, the employer may require the employee to delay his or her leave until the notice period has elapsed. However, otherwise, such as if there is a sudden injury or illness, then the employee is only required to give the employer as much notice as is possible under the circumstances.

Employers also may deny or delay leave if the employee fails to provide timely medical certification of the need for leave, whether the leave is for the employee’s medical condition or to care for a family member. Employers have a right to require employees to provide medical certification to prove that requested time-off is for a FMLA approved-purpose.

The FMLA also requires employers to reinstate employees to the same or similar position after returning from FMLA leave. However, in some situations, employers may decline to reinstate an employee. If the employee meets the definition of a “key employee,” the employer does not have to reinstate him or her to the position. A key employee is an employee in a highly-paid, salaried position with the employer. Employers may refuse to rehire key employees if doing so would cause “substantial and grievous economic injury” to the business operations to do so.

Employers also do not have to reinstate employees to their position if the position was eliminated during his or her leave and it can be shown the position would have been eliminated regardless of whether the employee took the leave. Likewise, if the employer notifies the employee at the time he or she begins a medically related leave that the employee will be required to provide certification of fitness for duty before he or she may return, the employer may refuse to reinstate the employee until he or she provides such medical certification. Finally, if the employee notifies the employer at some point during the leave that he or she does not intend to return, the employer’s obligation to reinstate the employee will of course end, even if the employee later changes his or her mind.

If you have questions on an issue related to your employees or your business, contact Thomas R. Thompson, Esq., of the law firm of Thompson, Crawford, Brown & Smiley.

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