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The Family Medical Leave Act (FMLA) for
Parents of Children with Disabilities
Family Medical Leave Act (FMLA) for Parents of Children with Disabilities. Bright Tots - Information on early childhood development.
The FMLA or the Family Medical Leave Act is a federal law passed in 1993 permitting eligible employees to increase job security while the parent manages to the children’s medical and psychiatric care or is recovering from serious health concerns. This law also protects the employee and their own serious health condition or a serious health condition of spouse, or parent. The FMLA requires employers to provide eligible employees time-off from work for FMLA qualifying reasons and prohibits employers from interfering with employee rights.
The FMLA allows employees to take leave to care for adult children as well as children under the age of 18. A recent court ruling helps employers understand when adult children are covered under the FMLA. The law permits mothers and fathers to take unpaid leaves of absences from work, with the guarantee of having employment once they return to work. With FMLA, parents can take time off from work when their children are hospitalized or are confronted with "serious health conditions" requiring routine appointments with medical doctors, mental health counselors, physical therapists, speech therapists, behavioral therapy and other special services.
FMLA recognizes that there are many illnesses, impairments, disabilities and physical or mental conditions which can qualify as serious health conditions. Among the circumstances which qualify for FMLA protection is "treatment by a health care provider on at least one occasion which results in a schedule of continuing treatment" under the provider's supervision. Autism, many chronic or long-term physical illnesses, and many psychiatric and developmental disabilities fall within the law's coverage.
FMLA law, includes both children under 18 and those who are "18 years of age or older and incapable of self-care because of a mental or physical disability." Under the FMLA regulations, the term "incapable of self-care" means that the person needs daily assistance or supervision to provide daily self-care in three or more of the "activities of daily living" and influential assistance for activities of daily living". The regulations further define the caretaker to include devoting for the individuals grooming and hygiene, bathing, dressing, and eating.
It’s pointed out that the FMLA relies on the definition of disability in the Americans with Disabilities Act (ADA). Thus, to be disabled, the child must have a physical or mental impairment that significantly limits a major life activity. The law has determined that an employee’s absences should be counted as FMLA leave. As a result, the employer would violate the FMLA when it considers absences in its termination decision.
Serious Health Condition Covered Under FMLA
The FMLA regulations define qualifying serious health conditions as an illness, injury, or physical or mental condition that involves one or more of the following:
• Long term or permanent disability such as autism, down syndrome, and cerebral palsy and other lifelong disorders.
• Hospital stays of at least one night.
• Incapacity for more than three consecutive calendar days (not necessarily workdays) and continuing treatment by a health care provider.
• Incapacity due to a serious chronic disorder (for example asthma, chronic back condition, multiple sclerosis).
• Incapacity due to pregnancy or for prenatal care.
• An absence to receive multiple treatments for restorative surgery after an injury or to prevent a period of incapacity of more than three consecutive days.
FMLA Due To Incapacity
Incapacity means inability to perform one necessary function at your job, attend school or perform other regular daily activities due to the serious health condition, treatment or inability to deal with crowds or other social situations.
The FMLA requires an employer to :
• Provide time-off accumulating up to 12-weeks per year due to a serious health condition of a child, spouse or parent or for their own serious health condition. For example an eligible employee working 5 days a week could get 60 FMLA days per year.
• Continue group health benefits, including optical and dental benefits, over the FMLA leave period (the employee would still be responsible for any co-pay on the premium they would have paid if they were still working).
• Return employees taking FMLA leave to the same position or an equivalent position with equivalent pay, benefits and working conditions at the conclusion of the leave (provided the employee comes back to work before the 12 weeks is exhausted).
The FMLA prohibits an employer from :
• Using FMLA covered absences as a basis for imposing a warning, suspension, discharge or other discipline, issuing a negative evaluation, denying advancement, making an adverse assignment, or taking other negative action against you.
• Interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the Act.
Employees are eligible if they :
• Work for a public employer or for an employer with 50 or more people on the payroll.
• Have been employed for at least 12 months (these need not be consecutive).
• Worked at least 1,250 hours during the 12-months immediately proceeding the first day of leave (this averages to about 25 hours per week over 12 months). Hours counted towards the 1250 do not include vacation, medical leave, or time off under workers compensation.
• Work in a location with at least 50 other employees within a 75 mile radius.
The FMLA entitles employees time-off for both unforeseen emergencies and planned absences involving:
(1) A serious health condition that makes you unable to perform your job;
(2) Care for your spouse, son, daughter, or parent with a serious health condition;
(3) The birth of a son or daughter, and to care for the newborn child;
(4) A new adopted or foster child placed in the home.
Examples of qualifying FMLA absences
• To care for a child who is unable to attend school due to asthma.
• To care for a parent recovering from a stroke.
• For treatment of your own chronic serious back condition.
• To provide psychological comfort to your spouse during medical testing for cancer.
• Incapacity due to severe morning sickness during pregnancy.
• To care for an adult son who suffers from a serious mental condition and is unable to care for himself such as a developmental disorder.
Taking FMLA to Care For a Family
The terms that an employee is "needed to care for'' a family member includes both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc.
The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care. Many times there is no aftercare available for children with disabilities during school days parents must leave work early to pick up their child from school. You may be required to have your family member's health care provider certify that you are needed to provide support or that your presence would provide beneficial psychological comfort. During summer vacation there are very few programs available for children with disabilities and parents, must also request FMLA to stay home to care for their children.
FMLA Intermittent Leave
Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. It can be used to protect employees from discipline for a variety of absences related to a serious health condition including:
• Incapacity due to a chronic serious health condition that comes up periodically;
• Inpatient care in a hospital (involving an overnight stay);
• Incapacity due to pregnancy (such as severe morning sickness);
• Treatment or testing for a serious health condition, prenatal care; or
• Care for a child, parent or spouse with a serious health condition.
The FMLA protects eligible employees who may be absent for one day, come in late, leave work for a couple hours, or depart work early if such time-off is for an FMLA qualifying reason and a healthcare provider certifies that it is medically necessary.
FMLA Reduced Schedule Leave
A reduced schedule leave is a leave that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced schedule leave is a change in the employee's schedule for a period of time, normally from full-time to part-time, but may also include declining overtime. It can be used if a health care provider certifies that it is medically necessary for your own serious health condition or to care for a child, parent or spouse with a serious health condition. Example: If your doctor restricts you to 20 hours a week for 24 weeks following surgery, your employer must place you on this schedule (twenty-four weeks at half time equals 12 weeks).
Can I be reassigned to a different job if I request intermittent FMLA leave?
If your employer decides to reassigned you to a different position it must be under your terms. They cannot create a hardship, must provide the same pay and benefits, and may not try to discourage you form taking leave. An employer may not impose a transfer on an employee who absent from work because of unforeseen medical problems.
Using FMLA for a Shorter Period of Time
The law provides eligible employees with time off total of 12 weeks a year. FMLA leave can be taken on a continuous basis or, if a health care provider determines it is medically necessary, in intervals of as short as a day or part of a day. Leave may not be denied because of production needs, a busy schedule, or because the employer considers you too important to take time off. FMLA leave may be taken intermittently or as a reduced schedule under certain circumstances.
An employee seeking unpaid FMLA leave can be required to provide medical certification, signed by a health care provider, verifying that the he or she or a covered family member suffers from a serious health condition and needs a period of time off, intermittent leave, or a reduced work schedule. The following rules apply:
• Your employer's initial certification request must be in writing. A posted rule or policy is not sufficient. The request must inform you of any penalties for noncompliance.
• The employer's request for medical certification must be made within two business days after you give notice of a need for FMLA leave or begin an unforeseen one.
After two days, a request can be made only if your employer has a legitimate basis to question the reasons for your leave or its duration.
• In the event of intermittent leave, your provider does not have to submit an exact schedule of leave if this is not known, just an estimate of the probably duration and intervals of absence.
• You must be given at least 15 calendar days to submit the certification. Additional time must be allowed if your doctor fails to fill out the form despite your diligent efforts. If the certification is incomplete in any way, you must be given a reasonable amount of time to correct the deficiency.
• If your certification is complete, your supervisor or manager may not request additional records or information from your health care provider. With your permission, however, your employer can assign a physician or other provider to contact the provider to authenticate or clarify the certification.
• The certification is confidential and must be kept separate from your personnel file.
• If you do not submit a medical certification or if the certification fails to indicate that you are unable to work because of a serious health condition, your employer can
Disapprove your leave or revoke a previous acceptance. If absences have occurred, they may be counted against you.
Tip : You take a risk if you give your health care provider a certification form and ask him or her to mail it to your employer. The provider may not answer all the questions or may fail to submit it on time. It is safer to pick up the completed form, make sure you hand in the completed form to your supervisor.
An FMLA violation occurs if your employer :
• Refuses to allow you time off for FMLA purposes.
• Fails to restore you to your former position or to an equivalent position after an FMLA leave.
• Uses bullying, threats, or intimidation to discourage you from taking FMLA leave.
• Discharges, disciplines, or demotes you because of an FMLA absence.
• Gives you a poor evaluation or denies you a promotion because of FMLA absences.
• Punishes you for complaining about FMLA violations, telling others about the FMLA, or taking legal action to enforce the FMLA.
• Denies you any rights provided by the FMLA.
Does a healthcare provider have to be a licensed physician?
No. The FMLA regulations define "health care provider" fairly broadly. The term not only includes physicians but also optometrists, osteopaths, chiropractors, podiatrists, dentists, clinical psychologists, Christian Science practitioners, nurse practitioners, nurse midwives, and clinical social workers (if authorized under state law to diagnose and treat serious health conditions without supervision), and other providers recognized by the employer or group health plan. Also, treatment by a nurse or physician's assistant under the direct supervision of a health care provider or treatment by a physical therapist on referral by a health care provider qualifies as treatment by a health care provider.
Employee Notification and Medical Certification Procedures; Initiate FMLA Protections
FMLA coverage is started once you provide adequate and timely notice to administration that you are unable to work because of your own serious health condition, or your spouse's, child's or parent's serious health condition or for some other qualifying reason such as an adoption or a foster care placement. You do not have to mention the FMLA by name, although it is a good idea to do so.
This notification can be verbal, given to anyone in management or to the third-party supervisor. It is the employer's legal responsibility to designate paid or unpaid time-off as FMLA. They are expected to investigate and ask questions to determine if your leave or absence qualifies for FMLA protection. If your employer asks, you must provide further details about your condition or that of your family member.
Keep in mind the FMLA does not require that you tell your employer the exact diagnosis (although you may have to submit this information to an insurance provider to be eligible for insurance benefits). Note: Although only verbal notice is required, at some point you may have to prove that you gave sufficient notice. It is recommended that you follow up a verbal request with a written request. It is a good idea to always keep copies of paperwork submitted to management in case disagreements arise later on.
FMLA Notice to Employer
The regulations outline different notification procedures for planned (foreseeable) and unplanned (unforeseeable) absences. In either case, you must give your employer adequate and timely notice when FMLA is needed. Otherwise leave can be disallowed or delayed and an absence counted towards discipline.
Employers may also require employees to provide :
• Medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member;
• Second or third medical opinions (at the employer's expense) and periodic recertification; and
• Periodic reports during FMLA leave regarding the employee's status and intent to return to work.
When intermittent leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to overly disrupt the employer's operation.
Foreseeable absences – should be requested within 30 days or as soon as possible.
Unforeseeable absence - As soon as possible within one or two business days.
The employer can require a 30-day advanced notice for planned leaves, but if that is not possible, notice must be given as soon as possible. Usually this means within one or two business days of when you learn of your need for leave.
Since advanced notice is impossible for unplanned absences, you are required to give notice "as soon as possible" - i.e., within one or two working days after you become aware of the seriousness of the condition. Notice may be given in person, in writing, by telephone, or fax machine. In the event of a brief absence (e.g., a day), FMLA notice may be submitted when you return to work.
Following the company’s rules on absenteeism
As mentioned above, the FMLA does not prohibit employers from establishing certain attendance rules such as calling in before start time, filling out FMLA paperwork, reporting periodically on the status of your condition - provided these rules are implemented in a reasonable manner. A lapse, however, cannot serve as a basis for denying you FMLA protection if you provide timely and sufficient notice. You may be subject to discipline for not following the call-in procedure, but if you gave adequate and timely verbal notice, you cannot be denied FMLA coverage. Keep in mind that the employer may require that you comply with more strict established requirements for obtaining sick or disability pay to cover your absence. Provided these requirements are reasonable and regularly used.
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