Federal law provides many employee protections, including the Family and Medical Leave Act (FMLA). This allows certain employees to take employment leave for medical or family reasons with job protection. State regulations such as the California Family Rights Act (CFRA) also guarantee several similar employee rights.
You have a legal right to this leave. If you ask for medical leave in good faith but are denied it or retaliated against by your employer, it can be scary and frustrating. Suppose you return from medical leave only to find that your pay or benefits have decreased. That is not the job protection you are legally guaranteed. Legal representation may be necessary to protect your rights and receive compensation for lost wages.
When your employee rights have been violated, you need the aid of experienced San Diego employment attorneys. Our firm can give you legal counsel and defense tailored to your personal situation. At The Law Office of Frank S. Clowney III, we provide our clients with advice that relies on their circumstances and our decades of experience. Dealing with employers who retaliate or discriminate against you for needing medical leave can be stressful. Our San Diego employment lawyers can build an effective defense against these actions.
The Family and Medical Leave Act (FMLA) is a federal statute designed to safeguard workers’ jobs in times of medical and family emergencies. The California Family Rights Act (CFRA) provides additional safeguards. These laws require an employer to provide a worker unpaid time off for sick leave; for care of a sick family member; and for maternity leave, paternity leave, or other medical reasons. California’s FEHA and California Labor Code section 233 provide similar rights.
FMLA and CFRA both cover all public and private employers who employ 50 or more employees for at least 20 workweeks per year. If you have been at your workplace for 12 months, have worked more than 1250 hours over the past year, and work for an employer with more than 50 employees, your employer is required by law to provide you with up to 12 weeks of unpaid temporary leave per year and restore you to your original position, or to an equivalent position, when you return. What happens when you do not get your job back even though by law you are entitled to it? Contact my law office to protect this violation of your rights.
This medical leave could be for yourself to take care of a medical condition, injury, illness, or disability. It can also be used to care for family members, such as raising and caring for a newborn, newly adopted, or newly fostered child. It can also be granted to take care of a relative with a serious health condition, such as a parent, spouse, or child.
You are allowed a total of 12 weeks in a 12-month period. In certain circumstances, these 12 weeks of medical leave may be taken intermittently, or an employer may grant a reduced schedule. Your employer is allowed to request medical certification when you request leave. However, they cannot ask you to sign a medical release form. If you qualify for leave, your employer should not deny your request. If they do, you have the right to file a claim.
When you are qualified to take leave, the FMLA protects you from being fired during your medical leave. You also cannot be demoted or passed over for promotion. If you return to your job and find that your benefits or wages have decreased, that is an FMLA violation. If you win your claim, you may, depending on your situation:
Damages may include lost benefits, wages, and other economic losses.
Filing a claim against your employer is stressful, especially if you are already dealing with the reason for your medical leave. An employment attorney can handle the legwork of a claim for you. This not only ensures accurate information in the claim, but it also takes strain off you and reduces the likelihood that your claim is dismissed. Attorneys also have access to certain resources, which can make getting the necessary evidence much easier. An attorney will manage the stressful and complex legal procedures while updating you on your claim’s progress.
Do you have FMLA Questions? I can provide answers. Call The Law Office of Frank S. Clowney III at 619-557-0458.
Denial of medical leave is not the only way an employer can deny your employee rights. If you have a medical problem that requires medical accommodation from your workplace in order to do your job, your employer must provide you with an Intermittent/Reduced Schedule Leave under the FMLA. Your employer is supposed to sit down, review the need with you and explore what is reasonable.
This medical accommodation cannot be reasonably refused. An attorney can address accommodation and medical leave issues quickly, concisely and thoroughly.
During an employment interview, a prospective employer is not allowed to ask you if you need medical accommodation or if you have used FMLA in the past. They cannot refuse to hire you because you have a disability, either.
Discrimination in the workplace is also unacceptable and a violation of your employee rights. Employees who need to take medical leave may also face harassment, wrongful termination, or unfair treatment due to their illness. If you can complete the job duties with reasonable accommodations, you should not be fired. Also, you legally cannot be terminated for taking medical leave under the FMLA.
I recently represented a client with a seizure disorder who was on FMLA. She was put back on the work schedule at the same time as she was given a new medication with questionable side effects. She returned to work — and she was fired for being under the influence. It was the new medication. Clearly, my legal advocacy is needed in a situation such as this.
If you qualify for FMLA, you are allowed a maximum of 12 weeks of leave per 12-month period. This leave is unpaid but job-protected. You cannot be fired, demoted, or otherwise have your pay or benefits cut during your leave. Group health benefits must also be maintained during the leave. The 12 weeks can be taken intermittently or through an employer-granted reduced work schedule.
During medical leave, unconditional raises that impact every employee automatically cannot be denied to employees taking protected leave. FMLA leave employees are entitled to the same pay increase or bonus. Other types of raises or bonuses, such as those based on seniority or work performance, must be given according to the employer’s practice. However, if other employees on equivalent leave receive a pay raise or bonus, employees on FMLA must also receive the same.
Employees must work for an employer with at least 50 employees. They must also have worked at least 1,250 hours in the last 12 months prior to beginning medical leave. Employees need to have been employed for at least 12 months. This time does not have to be consecutive if the employment occurred within the last seven years.
When you return to work from FMLA leave, you should be reinstated at your former position with the same pay and benefits. Retaliation would include demotion, reduced pay or benefits, or job duties that were not part of your previous position. Another example would be your employer claiming you have lost seniority or are no longer eligible for a promotion you are qualified for.
As an employee, you deserve fair treatment and medical leave to take care of yourself and your family. Call my office to discuss FMLA, medical accommodations, hostile work environments, harassment, wrongful termination, or any other employment law question. At The Law Office of Frank S. Clowney III, we believe in advocating for your rights. Our firm can provide you with the support and legal representation you need. Contact me today by calling 619-557-0458.