Family Medical Leave Act (FLMA)

As amended, the FMLA permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave during a 12-month period to care for a member of the armed forces with a serious injury or illness. An employee may also take FMLA leave for “any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to active duty) in the Armed Forces.”

The FMLA applies to employers with 50 or more employees for each working day during 20 or more calendar workweeks in either the current or the preceding calendar year. Employees are eligible for FMLA leave if they have been employed by the employer for at least 12 months, have worked 1,250 hours during the 12-month period before the start of the leave, and currently work at a site where the employer employs 50 or more employees within a 75-mile radius.

In the foreseeable situation, the employee must provide 30 days’ advance notice of the need for leave to his or her employer. However, if not foreseeable, whatever notice is practicable is all that is necessary. When leave is requested, which does not have to be expressed as an FMLA leave, the employer must notify the employee within 5 business days that the leave qualifies as FMLA leave. When an employee seeks a leave of absence for an FMLA-qualifying purpose, the employer must initially provide a written eligibility notice to the employee that states whether the employee is eligible for FMLA leave and, if not, at least one reason why the employee is not eligible. At the same time, the employer must provide the employee with a notice of rights and responsibilities (which can be included on the same form as the eligibility notice) that gives the employee information about his or her specific rights and obligations and explains any consequences for failing to meet those obligations. Employers may require an employee who is seeking a leave for a serious health condition or to care for a seriously ill child, parent, or spouse to obtain medical certification of the serious health condition from a health care provider.

FMLA leaves are unpaid, although group medical insurance benefits must continue while the employee is on leave. In certain circumstances, paid leave provided under an employer’s policies may be substituted for unpaid FMLA leave, while at the same time counting against an employee’s 12 weeks of FMLA leave. If paid leave is to be substituted for FMLA leave and counted against the employee’s annual FMLA entitlement, the employer must notify the employee of the substitution at the same time it provides the employee with a notice of eligibility, rights, and responsibilities, which occurs within five business days of the date the notice is received, absent extenuating circumstances.

An employee who takes an FMLA leave must be returned to his or her former position or an equivalent position with the same pay, benefits, and working conditions that existed before the leave. If an employee cannot return to the same or an equivalent position at the end of an FMLA leave because he or she cannot perform an essential function of the position due to a physical or mental condition, the employee has no right to restoration to another position under the FMLA. If the FMLA leave is based on a serious health condition, the return to work may be contingent on a fitness-for-duty certification from the employee’s health care provider. This requirement must be applied to all similarly situated employees (same position, same serious health condition). An employer may require that the certification address the employee’s ability to perform the essential functions of the employee’s job, so long as a list of those functions is provided with the designation notice. The employer may not contest the fitness-for-duty certification through second and third opinions. An employer may terminate an employee during leave if they would have otherwise done so regardless of the leave (e.g., performance reviews, reduction in force).

Two types of claims can be made under the FMLA. The first type of claim involves a violation of substantive rights created by the statute. These substantive rights include statutory entitlements to FMLA leaves, reinstatement to the same or equivalent positions, notice of rights and responsibilities under the FMLA, and the continuation of medical benefits during FMLA leaves. These are sometimes referred to as “interference” or “entitlement” claims.

The second type of claim involves discrimination or retaliation against an employee for taking FMLA leaves, opposing a violation of the FMLA, or participating in a charge or action instituted under the FMLA. Such claims must be brought within two to three years of the violation. There is a three-year limitation applying to intentional violations.

Paid Medical Leave Act

There is no Michigan law that is directly equivalent to the FMLA. However, the Paid Medical Leave Act (PMLA) requires most Michigan employers (private and public sector employers who employ 50 or more persons) to provide a minimum amount of paid leave to their employees and to maintain records of leave granted and taken. PMLA requires an employer to accrue one hour of paid medical leave for every 35 hours worked by an eligible employee. An employer may cap this required accrual at one hour of paid medical leave for each calendar week, and the employer may limit an eligible employee’s PMLA leave accrual to 40 hours per benefit year. A benefit year is any consecutive 12-month period used by the employer to calculate an eligible employee’s PMLA benefits. The reasons for which paid leave must be granted extend beyond those for which unpaid leave is required under the federal FMLA. Employees may pursue claims for PMLA violations only through the Michigan Department of Licensing and Regulatory Affairs, Wage and Hour Division within six months after the violation occurs.

If you believe your employer is violating your right to the benefits of the Family and Medical Leave Act, you do not have to suffer or “deal with it.” The Schipper Law Group’s Family and Medical Leave Act attorneys will explain all of your rights, explore every option, and provide you with aggressive representation when needed. We have a proven track record of achieving successful outcomes inside and outside of the courtroom. Schedule a consultation online or call us at (248) 729-2414 to learn more about how The Schipper Law Group can help.