The Family and Medical Leave Act (FMLA) requires certain employers to provide employees with time off to care for a family member with a chronic condition or to recover from a serious illness. FMLA gives you the right as an eligible employee to take unpaid leave without fear of losing your job. That way, employees can strike a balance between family and work life.
Unfortunately, some employers do not understand this law and deny requests for intermittent leave, causing serious issues, such as worsening medical health, missed medical appointments, disciplinary action as retaliation for skipping work, and, in serious cases, termination. If your employer improperly denies you intermittent leave, you can file a claim. However, to do this, you must understand FMLA, your eligibility, and the steps to safeguard your rights.
FMLA Overview
The FMLA enables qualified workers to obtain intermittent leave for specific chronic conditions without risking their jobs. The leave allows you to take leave in a separate block of time or to cut your standard work hours when a chronic condition necessitates it. Intermittent leave differs from continuous annual leave, which is paid and continues for an extended period. The leave is for serious ailments that are unpredictable or require periodic treatment, such as diabetes, arthritis, or mental illness that requires hospitalization or therapy.
FMLA is not the only statute that protects California workers. There is the California Family Rights Act (CFRA), which provides eligible employees with 12 weeks of unpaid leave for their own chronic conditions or those of eligible family members. If you are entitled to intermittent leave, your employer must grant it, unless you have exhausted the 12 weeks. You can lodge an FMLA claim if your employer denies you an intermittent leave request because they do not understand the law or do not want to inconvenience their schedule.
Eligibility for Intermittent Leave
The FMLA and CFRA do not apply to all employees and employers. To qualify for intermittent leave under FMLA, you, an employee, must satisfy the following conditions:
- Your employer must have at least 50 workers operating within a 75-mile radius. The total number of employees comprises all employees on payroll, including those presently on leave and part-time workers.
- You must have been employed for at least one year before the intermittent leave request
- You must have worked for at least 1,259 hours, approximately 25 hours a week, in the past twelve months before the leave application.
Under CFRA, you are eligible for intermittent leave if your employer has at least five employees. So, it is good to understand both the FMLA and CFRA criteria, as CFRA has a broader definition and can include many workers who are deemed ineligible under FMLA.
Specified Reasons for Taking an Intermittent Leave
Even when you satisfy the FMLA criteria, you must have a specified reason for taking the intermittent leave; otherwise, it will be denied. The specific reasons for seeking leave include:
- Birth, child adoption, or foster care
- Employee’s serious medical condition
- A qualifying family member’s serious condition
- A family member’s service-related injury
- Qualifying urgent matters relating to a family member in active duty or call to active duty
Intermittent leave should not exceed 12 weeks per year, or 26 weeks for military caregiver leave. Once you complete the program, your employer must reinstate you to work.
Employee Right to Reinstatement
In any year, once you exhaust the twelve-week unpaid leave, your employer should reinstate you to the job position you held before the leave. If someone else holds the position, they should reinstate you to another position with equal pay and benefits. However, you will not enjoy a greater right to reinstatement than you did previously. So, when someone legitimately takes your job while on intermittent leave, you cannot be reinstated in the same position. Additionally, if you are a key employee among the 10% most paid in the workforce or reinstating you would cause substantial economic losses, the employer can refuse to reinstate you, but only if they had warned you about being a key employee and the possibility of being denied your job back after the intermittent leave.
Chronic Conditions and Intermittent Leave Eligibility
The FMLA applies when you have a serious health condition, such as:
- An illness that requires inpatient care
- An illness that leaves you incapacitated for at least three days, with continuing treatment
- Pregnancy or prenatal care that leaves you incapacitated
- Permanent incapacity
- Certain conditions require multiple treatments
A chronic serious health condition might not require multiple doctor appointments or cause incapacitation, but it is still entitled to an intermittent leave. Your chronic condition will be covered for the unpaid leave if:
- You, the worker, require at least two periodic visits to the doctor for examination or treatment.
- The illness continues over an extended duration
- The illness can be episodic instead of a continuing incapacity
Chronic conditions that are eligible for intermittent leave include, but are not limited to:
- Epilepsy
- Asthma
- Diabetes
Conditions Ineligible for Intermittent Leave
The FMLA does not list chronic illnesses that do not qualify for intermittent leave. The facts of the case are what determine whether a condition is serious. Minor illnesses that are not covered under the law include flu, migraines, earaches, routine dental issues, or cosmetic procedures that do not require inpatient care. Even though these conditions are minor, they must be evaluated to determine whether they are covered. A migraine could be due to a cancerous brain tumor, hence the need to review the facts of the case.
Reasons Why Employers Deny Intermittent Leave Requests
Even when you are covered under FMLA or CFRA, your employer can still deny your intermittent leave application for proper reasons. The genuine reasons for intermittent leave denial that do not warrant an FML claim, including:
- Providing insufficient documents
- Not providing the employer with the appropriate notice
However, there are instances in which employers improperly deny eligible employees intermittent leave due to a misunderstanding or misinterpretation of the law. If your claim is denied because an employer misinterprets the FMLA coverage, the company will be in trouble with the law. The common misinterpretations by employers include:
- Failure to Recognize a Serious Health Condition
The law provides coverage for all serious conditions but does not cover minor ailments. Minor conditions not covered by the law are not listed under the FMLA, leaving employers free to decide whether an illness is serious, depending on the facts of the case. As a result, some employers can misinterpret a serious condition as minor, denying intermittent leave. For instance, cold and flu are minor ailments not covered under FMLA. However, if your employer ignores the facts of the illness and denies you leave, only to later develop bronchitis or pneumonia, you can file a claim against them for intermittent leave denial.
- Disciplining Workers for Excessive Absence
Some companies have stringent absenteeism or leave policies that might interfere with your FMLA rights. If your company adopts a no-fault absence policy, it means that every day you miss work for whatever reason is counted as an absence. And when you reach a certain number of absent days, the company imposes disciplinary measures, such as a warning or utilizing your leave usage as consideration during a performance evaluation. So, even when the employer does not outright deny you intermittent leave, if these days are counted as absent days or the leave is considered during the evaluation of performance, they are unlawfully denying you intermittent leave.
The FMLA absence should not count as an absent day. Unfortunately, some employers do not bother to determine why an employee is absent, failing to consider that you have FMLA coverage.
- Failure To Designate an Absence as FMLA or CFRA Leave
You can file a claim against your employer if you provide sufficient information when requesting an intermittent leave. However, some employers will intentionally leave out the information that qualifies the leave as FMLA so that they can designate it as an absence to discourage you from asking for one in the future.
- Requesting Too Much Certification or Recertification
Employers have a mandate to notify employees of their FMLA rights regularly. Additionally, they should request medical certification or recertification for intermittent leave. Employees must provide notices for the leave they seek. However, some employers deny employee information on their FMLA rights. Others require a lot more certifications or notices than are needed to find grounds for denial.
Steps to Take After Intermittent Leave Denial
If your intermittent leave application has been improperly denied or you are not happy with the response, you should consult an experienced employment lawyer immediately. The attorney will evaluate the employer’s policy and reasons given for the denial and advise you on the best course of action.
Understand the Company’s Leave Policy
Your employment attorney will review your employer’s policies on leave, including the application process, notices, and documentation required. Once they understand the company’s leave rules, it becomes easier to identify the reasons for the denial.
Request for the Denial in Writing
If your company denies your intermittent leave request, you should demand a detailed explanation of the decision. The explanation should inform whether you should appeal the decision or file another request.
If the employer alleges you did not provide sufficient medical information for the chronic condition, request a detailed medical report on the illness or work with the physician to create a more detailed report.
Collect More Supporting Documents
If you will be filing a lawsuit or a new application, you want to have sufficient documentation to ensure a successful outcome. Request for medical certification that outlines your chronic condition or conditions and required treatment. Ask for copies of the medical records detailing the disease, the treatment administered, and the number of appointments required. If your leave requests have been denied in the past, keep the copies of the denials.
Discuss the Denial with your Doctor or Medical Care Provider
Allow your medical provider to review the denial explanation to find out the mistakes made in the previous documentation or what could be added to meet the employer’s requirements. If clarification is needed, the doctor should provide it.
Talk to the Employer
If you identify violations of your FMLA rights in the denial, your employment attorney should contact your employer or the human resources department to find a solution that includes approving the leave or lifting any adverse employment actions taken because of your absence.
Lodging a Formal Claim with the Department of Labor (DOL)
If no settlement is reached after talking to the employer, you can submit a complaint to the DOL’s Wage and Hour Division. You can file online, by phone, or by mail. The DOL will investigate the matter and take the necessary action if it discovers a violation.
Filing a Lawsuit
Another alternative, if no settlement is reached with your employer, is to file a private lawsuit in a civil court for FMLA rights violations. A lawsuit can be lengthy and expensive, so the parties involved rarely take this route. However, where a serious rights violation is involved, a lawsuit is necessary.
You have two years from the date of the violation to lodge the lawsuit or risk relinquishing the right to a claim. If the employer violated the rights willfully, the statute of limitations is 36 months.
Possible Remedies or Results from a Lawsuit or Claim
If your claim is successful, the possible outcomes, depending on your case’s facts, include the following:
- Ordering the employer to pay compensatory damages for the emotional suffering, physical pain, and mental anguish stemming from the intermittent leave denial.
- Reinstatement to your position before the leave if the employer reinstated you to a lesser position.
- The court can order immediate reinstatement if the employer is postponing it as retaliation for taking the leave.
- Reclassification of a non-key employee if the employer misclassified you to discourage you from taking the leave.
- Compensation for lost wages and other benefits missed due to leave denial
- Reimbursement of attorney fees
Find a Competent Employment Attorney Near Me
Employers can interfere with or deny you FMLA or CFRA rights in many ways. If you believe your employer has engaged in a violation by denying your intermittent leave for a chronic condition request, you should consult an experienced employment lawyer to understand your options. If the leave has already been denied or the employer has reiterated against you for using the leave, a competent attorney can help.
At Leland Law, we will negotiate a favorable settlement, file a complaint with the DOL, or submit a lawsuit in court to contest the denial or find remedies. Call us at 866-449-6476 to discuss your situation in California.
