Employment Rights of the Injured Employee
II. The Family and Medical Leave Act
The Family and Medical Leave Act of 1993 took effect on August 5, 1993. This statute covers private or public employers who employ 50 or more employees within a 75 mile radius of the facility where the employee works.
An employee seeking leave under this Act must have worked for the employer for 12 months or longer, compiling 1,250 hours of service with that employer during the 12 months before seeking leave.
Specifically, the Statute provides for 12 work weeks of unpaid leave during any 12 month period for one or more of the following:
1) Birth of a child;
2) Adoption or foster care of child;
3) Serious health condition of child, spouse or parent;
4) Serious health condition of employee which makes the employee unable to perform the functions of his or her position.
In addition to giving 30 days' notice to employers when that timing is possible, the Act requires certification by a health care provider that a serious health condition requires care by the employee, or that the employee has a serious health condition that makes it impossible for the employee to perform the functions of the job. Care includes psychological as well as physical care.
An employer must maintain health benefits for the employee on leave, if it offers health benefits. But if the employee does not return to work for any reason other than a continuing or recurring serious health condition, the employee must pay back the health benefits premiums to the employer.
The statute provides for the restoration of an employee to the position he or she held when the leave commenced or an equivalent position with equivalent benefits, pay and other terms and conditions of employment.
This statute may have tremendous benefit to those employees who have sustained a personal injury or worker's compensation injury. They now have rights to challenge the employer's refusal to reinstate them so long as the time out of work does not exceed 12 weeks.
The Act provides special rules for elementary and secondary educational employees, civil service employees and congressional employees. It also establishes a Commission on Leave, effective immediately, to report to Congress on leave policies within two years.
Remedies include reinstatement of employment, recovery of lost wages, compensatory as well as punitive and punishing damages, attorney's fees and costs.