Family Medical Leave Act (FMLA) and The Americans with Disabilities Act (ADA)
What is considered a serious health condition? Not a cold or the flu. It has to be illness, injury, impairment, or physical or mental condition that involves care at a hospital or other medical office. You also have to be unable to attend work or perform regular daily activities, or be receiving continuing treatment for a chronic or serious condition from a health provider.
Am I protected by FMLA? Not always. If you work for a private employer at a location within a 75-mile radius of a job site with 50 employees, then you may be eligible for job protection and medical leave under FMLA.
You also must have worked for the employer for one year, though the time worked doesn't have to be all at once. Within the previous year, you must have worked 1,250 hours, or at least 24 hours a week, to qualify.
Do I need to take leave for a health condition all at once? No, there are different types of leave an employee may take under FMLA. If it's for childbirth or surgery, for example, the worker might give the employer notice of weeks required for recuperation. A cancer patient on chemotherapy, however, might need small doses of time over a period of months for medical treatment.
How much time off can I take under FMLA? At most, 12 unpaid weeks. Some employers continue pay during that leave. Certain workers could get more leave related to their health condition under the Americans With Disabilities Act (ADA).
Do I have to inform the employer I'm taking FMLA? Employees are not required under the law to specifically tell an employer, "I want an FMLA leave.," but they should provide enough information that there might possibly be a need for a leave. Employees and employers should err on the side of giving and receiving more information.
An employee is usually best served by documenting a health condition or disability with the employer, experts say.
Kessela Brown, spokeswoman for the EEOC in Miami, said it's up to the employee to tell their employer about their health situation and ask for an accommodation, if necessary. "Most accommodations are under $500," she said.
Are employers generally flexible with employees who are cancer patients? Half of employers that responded to a recent survey about accommodating seriously ill employees say they made the requested accommodations "all of the time." The other half indicated they made the requested accommodations "most of the time," according to a survey by the International Foundation of Employee Benefit Plans.
Those accommodations included flexible hours, reduction in hours, additional breaks and telecommuting.
What types of health conditions does the ADA cover? The ADA was amended in 2009 to apply to a broad array of health conditions where a patient might have recurring episodes, such as cancer, Brown said. Employers have the right to ask for documentation for a health condition when an employee requests leave.
Employers should provide their workers with a Department of Labor form for their doctor to provide more detail about their health condition. Medical information must be kept separately from the worker's regular personnel files, according to the DOL.
What if I'm denied FMLA leave? Call a lawyer specializing in employment discrimination. The Florida Bar Association provides referrals. Or file a complaint with a federal, state or local agency that handles employee violations (see detail in box.)
Can I be fired if I have a serious health condition? After 12 weeks of leave, the employee has the right to reinstatement to the same or equivalent position. But if the company happens to be going through layoffs, workers on FMLA or disability leave can't be singled out, but are not immunized from layoffs that would have otherwise affected you.
What should I do if my employer is harassing me to come back to work? Within the 12 weeks, the employee cannot be forced to come back to work until the doctor certifies it's OK to return. If the health condition is serious, but is not a disability that might provide more leave under ADA, then the employer is not obligated to reinstate the employee after the 12 week-maximum.
If I decide to sue, could I win a large jury verdict? It's always possible, but most employees who sue for employee law violations don't win big verdicts. Often the cases are settled or even dismissed. Awards under ADA are limited to $300,000. The Florida Civil Rights Act caps punitive damages at $100,000, but there's no limit for emotional pain and suffering.