A leave of absence is time allowed away from work, generally requested by an employee, to cover unusual circumstances occurring in the employee’s life. The leave of absence is used when the employee’s time off from work is not covered under an employer’s existing benefits such as sick leave, paid vacation, paid holidays, and paid time off.
The Family and Medical Leave Act (FMLA)Uniformed Services Employment & Reemployment Rights Act
The Family and Medical Leave Act (FMLA) is one of the most important laws covering employees. It protects employees from losing their jobs if they need to take unpaid leave for illness — their own or a family member’s — childbirth, adoption, or caregiving. Employees who exercise leave are entitled to reinstatement to the position they held before taking the leave or to an equivalent position.
Employees do not have to say the magic words “FMLA” or “Family and Medical Leave Act” to qualify for FMLA leave. In most cases employees only need to put their employer on notice that their situation may qualify as an FMLA-protected event, and it is the employer’s responsibility to offer the employee FMLA leave.
You are eligible for FMLA leave if you:
Have been employed for at least 12 months;
Have worked at least 1,250 hours during the 12-month period immediately preceding the start of the leave; and
Are employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.
Unfortunately, some companies don’t understand their employees’ rights under the FMLA. They sometimes deny reasonable requests for leave. They may penalize employees for taking leave. The decision to take even a short-term medical leave may factor into a layoff decision. That is illegal.
The FMLA makes it unlawful for an employer to interfere with, restrain or deny the exercise of or the attempt to exercise any right or benefit provided by the FMLA. An employer’s interference with the exercise of an employee’s rights under the FMLA includes not only refusing to authorize FMLA leave, but discouraging an employee from using such leave and manipulation by a covered employer to avoid responsibilities under the FMLA. In order to prove a case under the FMLA interference, the employee must show that he or she was entitled to benefits under the FMLA and that he or she was denied them. The employee does not need to show that the employer treated other employees more or less favorably and the employer cannot justify its actions by showing that it did not intend it or it had a legitimate business reason for it. A FMLA claim for entitlement or interference is not about discrimination, but instead, whether the employer provided its employees the entitlements guaranteed by the FMLA.
Reserves and National Guard members face particularly difficult challenges as they can be called up at a moment’s notice, and their tours of duty can be extended. These requirements can put a tremendous strain on their ability to maintain their employment.
Fortunately, there is a federal anti-discrimination law that protects armed services members facing this difficult situation. The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides that most military personnel must be returned to their jobs when returning from serving in the military, and it also prohibits discrimination based on an employee’s military service.
The USERRA applies to members of the Army, Navy, Air Force, Marines, Coast Guard, and Public Health Service commissioned corps, as well as reservists in each of each of these branches. It includes active duty, active and inactive training, funeral honors duty, and periods of absence for the purpose of obtaining a fitness for duty examination. The USERRA covers nearly all employees, including part-time and probationary employees, and it covers almost all U.S. employers, whatever their size.
The law also requires employers to reemploy returning service members if the following five circumstances are met:
The returning service member was in a civilian job;
The returning service member must have given notice that he or she was leaving the job in order to perform uniformed service, unless notice was impossible or impractical under the circumstances;
The period of service did not exceed five years;
The returning service member must not have received a dishonorable or other form of punitive discharge from the service; and
The returning service member must report back to work in a timely fashion after being discharged or submit a timely application for reemployment.