Disabilities Guidebook: Taking Time Off Work for Illness

Disabilities Guidebook: Taking Time Off Work for Illness

Last updated: June 2005

(Chapter 6 Section 5 from Guidebook of Laws and Programs for People with Disabilities)



The Family and Medical Leave Act (FMLA)

What Is It? The FMLA gives you a right to a medical leave if you are an eligible employee with a serious health condition that makes you unable to perform the functions of your job. A medical leave is also granted to an eligible employee who must care for a parent, spouse, or child with a serious health condition. Employees are given rights to return to work after the leave period.

What Is Its Purpose? To promote family security by helping people balance the demands of the workplace with personal and family needs. To make sure that employees can take time off work, with benefits, when their disabilities or serious illnesses (or those of family members) prevent them from working.

Who Can Be Helped By This Law? Any employee with a serious health condition or who must care for a family member with a serious health condition, who works for a covered employer, and who has worked for a certain amount of time.

I. Your Rights as an Employee

What Employers and Employees are Covered by the Family and Medical Leave Act?

Leave When You Have A "Serious Health Condition"

You are entitled to FMLA leave benefits only if you have a "serious health condition" or where you must care for a parent, spouse or child with a serious health condition.

A "serious health condition" refers to an illness, injury, impairment, or physical or mental condition that involves either in-patient care or continuing treatment by a health care provider.

In some cases, a person with a serious health condition under the FMLA also will be a person with a disability under Title I of the Americans with Disabilities Act (ADA), although that is not necessarily the case. See the section of this Guidebook titled "Who Has Disability Under the ADA?" in Chapter 1, General Considerations.

Employers That are Covered and Employees Who are Eligible

The FMLA covers only those businesses that employ 50 or more persons within a radius of 75 miles during 20 or more calendar weeks in the current or preceding calendar year. Public or governmental agencies are covered without regard to the number of employees employed.

As an employee, you are eligible for coverage only if you have been employed for at least one year and have worked for at least 1,250 hours during the previous 12 months.

Your Rights to Medical Leave and to Benefits During the Leave Period

The Amount of Leave Allowed
If you qualify, the FMLA requires the employer to provide you up to 12 full weeks of unpaid leave for each 12 month employment period.

In some cases, if your condition also qualifies as a disability under the ADA, you may be entitled to additional unpaid leave as a reasonable accommodation under the ADA. See the section in this Chapter titled "Reasonable Accommodations and Freedom from Discrimination."

Leave can be taken in parts. If you are eligible for FMLA leave benefits, you are not required to use up all 12 weeks of FMLA leave at one time. Leave can be taken in parts, spread out over the year.

Also, where medically justified, you can obtain leave on a "reduced leave schedule." This means a work schedule that reduces the number of hours per week or hours per day that you work. Only the amount of time you take off is counted against your leave benefits.

Note: The FMLA also permits a leave if you need to take time off for the birth of a child or adoption of a child or the provision of foster care. In those situations, you are more limited in your right to take leave "in parts" or on a reduced leave schedule. In that case, it is permitted only if the employer agrees.

Paid Leave or Unpaid?
Normally, FMLA leave is "unpaid." This means that you do not receive a salary or other wage during the leave period.

In many situations, however, employers have provided employees with "paid" leave when a serious health condition interferes with employment.
Example: An employer pays an employee during the leave period, but takes it out of his sick leave or vacation benefits.

In order to prevent employees from tacking paid leave onto the 12 weeks of FMLA leave, the law allows employers to substitute your paid leave benefits for unpaid FMLA leave. In this way, the employer can prevent you from "tacking," and limit leave to 12 weeks.

If an employer substitutes paid leave for unpaid leave, the employer cannot impose conditions on your use of paid leave that are more demanding than those the employer normally would require.
Example: Medical certifications usually are required to get the unpaid FMLA leave. However, if an employer does not normally require certifications to get paid leave, then the employer cannot require you to submit a medical certification as a condition to the use of paid FMLA leave.

Medical Certifications
If you request a medical leave, your employer may require you to provide certification from a doctor or other health care provider. This is so the doctor can verify the serious health condition. Employers are limited in the nature and amount of medical information that it can legally request on a certification.

The U.S. Dept. of Labor has developed a form for medical certification that meets the FMLA's certification requirements. The employer cannot require any additional information beyond what is on that form. In all cases, the information on the form must relate only to the serious health condition for which there is a current need for leave.

In some cases, the employer may have reason to doubt the validity of the initial certification. Then, the FMLA permits the employer to request a "second opinion" before granting FMLA leave.

If the second certification conflicts with the original, the employer may request a "third opinion." You can obtain a third opinion from a health care provider acceptable to both you and the employer. If the third opinion is needed, both you and the employer will be bound by it.

If the employer requests a second or third opinion, the employer must pay for them. An employer who continuously requests second and third medical certifications may be doing so for harassment purposes in violation of the ADA.

During the course of a medical leave, the FMLA permits an employer to request
"recertifications" from the employee. This is to verify the continued need for medical leave. The employer also may require a "fitness-for-duty certification" before allowing the employee to return to work.

All medical information obtained by the employer must be kept confidential. This means that unless there is an emergency or some other special situation, employers should only disclose an employee's medical information on a need-to-know basis. As more people find out about your health condition, the chance for job discrimination increases.

Transfer to An Alternative Position to Accommodate the Leave.
In some cases, an employee or a family member in his/her care may have a health condition that requires only a "partial leave." That refers to a leave which allows the employee to work on a modified schedule. In other cases, the health condition requires an "intermittent leave." That refers to leave taken in parts.
If you are in one of these situations, the FMLA permits an employer to reassign you to an "alternate position" that more adequately conforms to the new work schedule.

The alternative position must be with equivalent pay and benefits (although the duties need not be equivalent). The needs of the business should support the reassignment, and it should not work a hardship on the employee. Otherwise, the employer might be engaging in unlawful discrimination and harassment in violation of the ADA.

Employee Benefits During Medical Leave.
During the leave period, employers must provide you with the same benefits you would be entitled to if you were still on the job. Any changes in benefits coverage that would apply to you if you were on the job also apply to you while you are on medical leave. Also, time accrued on FMLA leave is to be counted towards your eligibility for pension and other retirement plans.

If the employer pays you benefits during the leave period, the employer usually cannot make you pay back those benefits.

Exception: If you fail to return to work for reasons other than for a serious health condition, the employer can recover from you all of the benefit payments it made during your medical leave. The employer cannot do this if the reason you fail to return to work is beyond your control.

Reinstatement to an Equivalent Position

Under the FMLA, you are not guaranteed that you will be reinstated to the exact position you held before you went on medical leave. However, an employer must return you to an "equivalent position."

An equivalent position is one that is virtually the same as the former position in terms of pay, benefits, and working conditions, including privileges, "perks," and status. It must involve the same or substantially similar duties and responsibilities.

The duties must involve substantially the same skill, effort, responsibility and authority.

You are entitled to reinstatement to an equivalent position even if you have been replaced during the leave period. This is true even if your position has been restructured to accommodate your absence.

When the Employer May Deny Reinstatement
In certain situations, the employer may legally deny an employee's return to work.
Ths is permitted, as follows:

  • If you use up the 12 weeks of FMLA leave and cannot return to work. In this case, you can be fired, unless you also have a disability and might be entitled to an extended leave as a reasonable accommodation under the ADA.
  • If you fail to obtain a requested fitness-for-duty certification.
  • If the employer eliminates your position entirely, provided the position would have been eliminated even if you had been continuously employed.
  • If you are a "key employee" of the company, and your reinstatement would result in substantial and grievous economic injury to the operations of the employer. A "key employee" is a salaried employee who is among the highest paid 10% of all employees within a 75-mile radius of the employee's work site. On the other hand, denying reinstatement to a key employee with a disability may violate the ADA.

II. How to Know if Your Rights Have Been Violated

Your rights have been violated if you are an employee eligible for medical leave under FMLA; your employer is covered by the FMLA, and:

  • You have a serious health condition and your employer has denied you a right to a medical leave of up to 12 weeks per year.
  • You must care for a parent, spouse, or a child with a serious health condition and your employer has denied you a right to a medical leave of up to 12 weeks per year.
  • Your employer has denied you the right to take your leave "in parts" or denied you the right to reduce your hours.
  • Your employer substituted paid leave for unpaid leave but put conditions on the use of paid leave that are more demanding than those the employer normally would require for paid leave.
  • You have sought a medical leave and your employer has asked you to provide medical information about your condition that goes beyond the narrow boundaries permitted by FMLA.
  • Your employer fails to keep all medical information about you confidential.
  • After you submit an initial medical certification, your employer asks you to provide a second or third opinion without a proper reason or fails to pay for the second or third opinion.
  • During a medical leave in which you are working on a reduced schedule, your employer transfers you to an alternate position that does not have equivalent pay or benefits.
  • During a medical leave, your employer fails to provide you with the same benefits you would be entitled to if you were on the job.
  • At the end of your permitted medical leave, your employer fails to return you to an equivalent position, unless an exception applies.

III. How to Protect or Enforce Your Rights

What to Tell Your Employer
You are entitled to medical leave without specifically saying anything about the FMLA or the ADA. The law requires only that you make the employer aware that you need a leave for one of the purposes recognized by the FMLA.

What You Can Do If the Employer Has Violated Your Rights to Medical Leave
If the employer has violated your rights under the FMLA, you can enforce your rights by filing a private lawsuit in either federal or state court. You must file your lawsuit within 2 years of the violation, even if you have a charge pending with the U.S. Department of Labor. The time for filing extends to 3 years in cases alleging willful conduct.

In the alternative, you may assert an FMLA claim through the U.S. Department of Labor. You can file a complaint in person, by mail or by phone, with the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor. You can file the complaint at any local office of the Wage and Hour Division. You can find below the address and telephone number of the local offices.

If you choose to file a complaint with Dept. of Labor, you should do so within a reasonable time of when you discover that your employer violated your FMLA rights. You must file the complaint within 2 years, or 3 years in the case of a willful violation.

No particular form of complaint is required. A complaint must be in writing and should include a full statement of the violations.

The Department of Labor will investigate and try to resolve your complaint. If the matter cannot be resolved, and the Department thinks you have a good case, the Department can file suit against the employer to remedy the violations.

Your Legal Remedies

If an employer has violated the FMLA, you may receive one or more of the following remedies. In any lawsuit, the court has the power to grant you these remedies:

1. Back pay, plus interest. You can recover any wages, salary, or benefits lost or denied due to the violation, plus interest on that sum;

2. Other monetary loss. If you did not lose any wages or benefits, the FMLA allows you to recover any other monetary loss, such as the cost of providing care for a parent with a serious condition, up to a sum equal to 12 weeks of wages;

3. Reinstatement or other affirmative relief. When appropriate, you may also obtain affirmative relief such as reinstatement to your job or a promotion;

4. Costs. You can recover trial costs, including attorneys' fees and reasonable expert witness fees;

5. Liquidated damages. In cases of violations where the employer acted "in bad faith," the FMLA can make employers pay you an amount as "liquidated damages." The amount of the liquidated damages is equal to your back pay or actual monetary loss, plus interest. This is in addition to your other remedies.

Additional remedies available under the ADA. Where the violations with respect to medical leave also violate the ADA, a person with a disability can recover other types of damages. These might include:

  • An award for emotional pain and suffering, inconvenience, and any loss of enjoyment of life;
  • A recovery of "punitive damages." That is an amount set by the court or a jury to punish the employer for any willful or malicious conduct.

IV. Where to Go For More Information

Statutes and Regulations
The Family and Medical Leave Act (FMLA) can be found starting at 29 USC 2601.

The regulations of the U.S. Department of Labor which interpret the requirements of the FMLA can be found at 29 CFR Part 825.

The Federal Agency in Charge
Contact the U.S. Department of Labor, Wage and Hour Division. In Illinois, they have offices at:
Chicago (District office)
230 S. Dearborn St., Room 412
Chicago, IL 60604-1595
(312) 353-8145

Chicago (Regional office)
230 S. Dearborn St., Room 820
Chicago, IL 60604-1595
(312) 353- 7280

509 West Capitol Ave., Suite 205
Springfield, IL 62704
(217) 492-4060

Federal Building, Room 77
100 Northeast Monroe
Peoria, IL 61602-1022
(309) 671-7058

Stewart Square, Suite 401
308 West State St.
Rockford, IL 61101-1219
(815) 987-4246

200 West Church St., Room B-9
Champaign, IL 61820
(217) 398-5581

1515 5th Avenue, Room 519
Moline, IL 61265
(309) 757-5720

Fairview Heights
333 Salem Place, Suite 250
Fairview Heights, IL 62208
(618) 628-0150

501 N. Riverside Dr.
Highway 21, Suite 201
Gurnee, IL 60031-2168
(847) 244-8770

West Chicago
2700 International Dr., #22
PO Box 22
West Chicago, IL 60185
(630) 584-4913

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