Common Questions About The FMLA

While there could be hundreds of different questions that you could have about the FMLA, I will try to answer a few of the most common questions below:

Is My Employer Required To Offer Me FMLA Leave If It Has Less Than 50 Employees?

No.  There are a number of requirements that must be met for your employer to be a “covered employer” for purposes of the FMLA; however, the main requirement is that your employer have at least 50 employees during the prior calendar year.  Some employers may try to play games and only count certain employees or locations; if you think your employer is trying to do that, you should consult with an attorney to determine whether your employer is covered by the FMLA.

Can My Employer Force Me To Use FMLA Leave?

Yes.  According to the  Dept. of Labor’s regulations, your employer is responsible for designating leave as FMLA-qualifying and giving notice of the designation to you.  Your employer can make this designation as soon as it has enough information to determine whether the leave is being taken for an FMLA-qualifying reason (e.g., for the birth/adoption of a child, serious health condition of you or your spouse/child/parent).  So if you are eligible for FMLA leave and taking a leave of absence for an FMLA-qualifying reason, your employer can unilaterally designate your leave as FMLA and  trigger the start of the 12 week period.

Does My Employer Have To Pay Me For FMLA Leave?

Generally, no.  FMLA leave is typically unpaid leave.  However, if you have accrued sick, vacation or other paid time off, you can choose to apply that accrued leave to your FMLA leave; however, your FMLA leave and paid leave will run at the same time and you will NOT be entitled to more than 12 weeks of FMLA leave.  Your employer can also require you to use your accrued time off during your FMLA leave – that means you can’t take FMLA leave and save your accrued time off for later unless your employer allows you to do so.  It is completely up to your employer whether to allow you to save your accrued time until  you return from FMLA leave.

Can My Employer Charge Me For My Health Insurance While On FMLA Leave?

Yes.  This only comes up when the FMLA leave is unpaid.  During FMLA leave, your employer is required to offer the health insurance on the same terms as when you were working.  If the leave is paid, your employer will deduct your share of the premiums from your paycheck – just as it does when you are not on FMLA leave.  When the leave is unpaid – and there is no paycheck to deduct the premiums from  – you are required to continue to pay your share of the health insurance premiums.

Does My Employer Have To Return Me To The Exact Same Position?

Yes and no; your employer can return you to your former position or an “equivalent position” – which the regulations define as “one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.”  Whether a position is truly an “equivalent position” can be a tricky question and will ultimately depend on the specific details of the two positions.

These are just the most common questions that we run into from employees regarding the FMLA.  If you have additional questions or would like assistance in finding an attorney that could help you with questions about the FMLA.  Please fill out the form below.

About Publius

"Publius” a former labor and employment litigation attorney in New York City with experience representing both management and employees in a broad range of labor and employment matters. As a "reformed" attorney, Publius is looking to provide the people of New York City with information that will educate them as to their legal rights and, if appropriate, connect individuals with attorneys that can assist them.
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