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Employee Right - Leave of absence and vacation

Contrary to popular belief, there is no federal or state law that makes an employer give employees leaves of absence and vacations. It depends on the will of the employer to give or not to give (except in the case of certain family and medical leaves as mandated in some states).

If the employer has formed a policy that offers additional benefits with regard to leaves, then employers are obligated to follow through on them. However, the right to alter the terms is with the employer, but they have to notify employees about the possible change. The employer cannot discriminate in providing benefits. The policy on offering leaves of absence and vacations should benefit every employee, regardless of age, sex, disability, race, national origin, etc.

The Family and Medical Leave Act requires employers to allow eligible employees to take unpaid leaves of absence for certain family or medical emergencies without risking job loss. A number of states have passed their own family and medical leave laws.

Sick Leave

As some employees may tend to believe, sick leave is not an inalienable right, and it is not made mandatory by any federal or state law to offer it. Employees have no right to this benefit unless they are voluntarily given it by the employer. However, most employers offer employees some paid time off each year to be used as sick leave.

As the employer is not obligated to give sick leave, there is no law that directs the employer to make the offered sick leave a paid leave. If paid sick leave is offered by employers, they have the legal right to ensure that the leave is used for its due purpose and not for leisure or other activity. In some cases, the employer may ask the employee to call up every day and report in, or submit a written note from a doctor for a serious health problem. The employer may monitor the patterns of sick leave use. Employees who are found misusing sick leave and manipulating it for other reasons may face disciplinary actions or job termination.

Although the employer is not required to pay out unused sick days, some employers do, believing that this encourages employees not to misuse sick leave. The accrued sick leave at the end of employment is paid only if the employer has stated so in the employment contract, collective bargaining agreement, or other legally binding agreement. (Letter requesting sick leave and also protesting unlawful denial is available on this site.)

Family and Medical leave

The Family and Medical Leave Act (FMLA) requires employers to grant employees up to 12 weeks of unpaid leave with the right of reinstatement to the job. Employees are eligible if they have worked for at least 1,250 hours for their employer for at least a year, and if there are at least 50 employees at their work site or at least 50 employees within 75 miles of their work site. (Letter requesting Family and Medical Leave and also protesting unlawful denial is available on this site.)

Employees can apply for leave under FMLA only for the following reasons:

  • Because of adoption or foster-care placement of a child.
  • Because of a serious health condition that affects the employee’s performance of his/her duties.
  • Because of the birth of a child and in order to care for the child.
  • In order to take care of a spouse, child, or parent with a serious medical condition.

When employees return to work after family and medical leave, they must be returned to the same job they held prior to their leave period, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. If employees meet the condition for the family and medical leave, they cannot be discriminated against and denied the leave by the employer.

Employees seeking to use FMLA leave are required to provide 30- day advance notice of the need to take FMLA leave, when the need is foreseeable and such notice is practicable.

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;
  • A second or third medical opinion (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.

Family and Medical Leave Act of 1993

The federal Family and Medical Leave Act (FMLA) was passed in late 1993 to allow qualified employees to take unpaid leave for family or medical emergencies, without risking loss of their jobs, health insurance benefits, or suffering retaliation. The law requires all employers of 50 or more employees to provide eligible employees up to 12 weeks of unpaid family and medical leave in any 12-month period.

The FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), and privatesector employers. The FMLA does not require employers to pay employees during their leave period. Employers can pay employees, or advance vacation pay (not necessitated by law). If employers provide health insurance coverage, then the law asks them to continue that coverage during the leave with no additional charge to employees.

Spouses employed by the same employer are jointly entitled to a combined total of 12 work-weeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, or to care for a parent who has a serious health condition. Leave for birth and care, or placement for adoption or foster care, must conclude within 12 months of the birth or placement.

The law requires that employees should provide sufficient information and genuine qualifying reasons to the employer for granting their Family and Medical Leave. While requesting leave, the employee need not mention FMLA, but explain why the leave is asked for. In case the employer was not aware that the employee has taken leave under FMLA, the employee, after returning from leave, should give notice within two days of rejoining the work and ask for the leave to be counted as FMLA.

Providing proof - If the employee requested leave for a serious health reason that is affecting the employee or an immediate family member, the employer may ask for certification by a health care provider as to the date on which the serious health condition began. It may include the probable duration of the condition, and appropriate medical facts regarding the condition. If the leave is requested for the care of the employee’s spouse, child, or parent, the certification must contain a statement that the employee is needed to care for the individual and the estimated length of time the employee will be needed for the care.

If the employer wants to verify the validity of the certificate, they may ask the employee to get a second opinion to verify the original certificate claim from a health care provider approved by the company. The verification is done at the employer’s expense.

Pregnancy leave

Pregnancy leave is the time a mother takes off from work at the birth or adoption of a child. Most employers do not offer paid maternity leave to the new mothers in their workforce.

The federal Family and Medical Leave Act (FMLA) requires employers (who employ 50 or more workers) to provide up to 12 weeks of unpaid leave to workers who need to care for a new child (either by birth or by adoption), to care for a seriously ill family member, or to recover from their own serious health condition.

Situations in which FMLA leave can be used as pregnancy or parental leave, or which pregnant employees are entitled to use FMLA, are as follows:

  • If complication from pregnancy constitute a serious health condition, and if a woman’s doctor recommends that a period of leave is medically necessary, the pregnant woman will be able to use FMLA leave for that purpose.
  • Following the birth or adoption of a child or placement of a foster child, new parents may use FMLA. This leave may be taken at any time during the first year after the new child arrives.
  • In cases where both parents work and are married to each other, the leave is restricted to a combined 12 weeks of parental leave. However, there is one exception: this rule does not apply to the employee who must go on a leave for her own serious health condition. If the woman went through a difficult labor and needs time to recuperate and cannot work for 12 weeks, then her husband will also have to be provided with 12 weeks of parental leave.

The employee should give a 30-day notice stating her intent to take leave. If for some reason the employee has to begin the leave in less than 30 day—because of date of birth, placement, or medical treatment—then the employee must give as much notice as possible.

In some states, employers are required to provide more than 12 weeks of leave, particularly for “maternity disability.” It is the term used when a female cannot work due to pregnancy and childbirth. When the female employee returns to work after family and medical leave, she should be returned to the same job she held when her leave began, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. The federal Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act of 1964, prohibits employers from discriminating against pregnant employees.

The female employee should also go though the provisions provided in the employer’s policies and handbook. There might be a provision of paid personal or medical leave available. If the employer’s policy provides for paid sick leave, it must be available to employees who are absent from work because of pregnancy.

Disability leave

Disability leave can be taken by the employee due to many reasons. Generally, it is taken by a disabled employee as a reasonable accommodation under the Americans with Disabilities Act (ADA).

Employees with disabilities may need paid or unpaid time off for a variety of reasons, including:

  • Obtaining medical treatment, rehabilitation, or physical therapy;
  • Recuperating from illness or surgery;
  • Obtaining repairs to a wheelchair, accessible van, or prostheses;
  • Training a guide dog;
  • Learning Braille or sign language.

In most cases the disabled employees take leave to receive medical treatment or therapy, or to recuperate. The leave may be taken for short-term or long-term disabilities.

Note: In most court cases, the court has agreed that regular and reliable attendance is an essential function of a job. Requests for indefinite leave have been uniformly rejected as unreasonable, since the purpose of the accommodation under the ADA is to assist a disabled person who can work, rather than to hold a job for someone who cannot. However, if the company has a policy of providing indefinite leave and it does not amount to undue hardship on the employer, the disabled employee cannot be discriminated because of his/her protected class.

Under the ADA, the employee is entitled to return to the same job unless the employer demonstrates that holding the job open would impose an undue hardship.

The Family and Medical Leave Act permits the employee to take medical leave when he/she is unable to work because of a serious health condition.

However, a FMLA serious health condition is not necessarily an ADA “disability.” An ADA disability is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Some of the FMLA serious health conditions may be ADA disabilities; for example, most cancers and strokes. Other serious health conditions, such as pregnancy or hernia, may not be considered ADA disabilities.

Continued Health Coverage

Under the ADA, an employer must continue health insurance coverage for an employee taking leave or working part-time only if the employer also provides coverage for other employees in the same leave or part-time status. The coverage must be on the same terms normally provided to those in the same leave or part-time status.

Under the FMLA, an employer always must maintain the employee's existing level of coverage (including family or dependent coverage) under a group health plan during the period of FMLA leave, provided the employee pays his or her share of the premiums. An employer may not discriminate against an employee using FMLA leave, and therefore must also provide such an employee with the same benefits normally provided to an employee in the same leave or part-time status.

Reinstatement: Under the ADA, the employee is entitled to return to the same job, unless the employer demonstrates that holding the job open would impose an undue hardship. Under the FMLA, an employee is entitled to return to the same position or to an equivalent position.

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