Josh Goodbaum: Hi, Amanda.
Amanda DeMatteis: Hi, Josh. What are we gonna talk about today?
Goodbaum: I want to talk about the Family and Medical Leave Act. We get a lot of questions about the FMLA. Most folks hopefully know that they’re entitled by law to 12 weeks of job-protected leave for their serious health condition or the serious health condition of a close family member, and that Connecticut law further provides that FMLA leave can be paid through the Connecticut Paid Leave Authority.
But one question we get a lot is, “I need more than 12 weeks of medical leave. Can I take more than 12 weeks of FMLA leave in a year?” What’s the answer?
DeMatteis: I love FMLA cases, Josh. They’re some of my favorite to litigate on behalf of our clients and Connecticut employees.
You should start by asking your employer when the 12 weeks resets. It might be every calendar year, or it might be a rolling 52-week period, but you can start by asking that. If your 12 weeks resets during your leave, then you might have more time.
But assuming that’s not the case, Josh, then the answer to your question is: It depends on why you’re taking this FMLA leave. Is it for your own serious health condition or the serious health condition of one of your family members?
Let’s take them one at a time.
Let’s assume first that you’ve taken FMLA leave for a family member’s serious health condition. The only way that you could extend that leave is by agreement with your employer. Go to your employer and say, “My wife, my husband – whatever family member it may be – is continuing to suffer from this serious health condition, which has kept me out of work. Can we agree to more time?” If they agree in writing, wonderful. You now have an agreement with your employer. You have that extended period of time to take care of this serious health condition of a family member.
However, if your FMLA leave is for your own serious health condition, then you have protection under both the Americans with Disabilities Act and the Connecticut Fair Employment Practices Act to seek the reasonable accommodation of additional leave from work.
Now, there are two things that you really need to be sure you do.
Number one: this reasonable accommodation needs to be limited in time scope. It is unreasonable to go to your employer and say, “Hey, I haven’t gotten better yet from this physical limitation, this mental limitation, whatever it may be. I need to continue to be off from work, period.” That’s not going to cut it. What you need to say is, “I need another 4 weeks. I need another 2 weeks. I need another blank,” and that blank needs to be reasonable in scope.
I always like to tell my clients, Josh: “Don’t go any longer than 30-day increments and make sure that you’re checking in with whatever doctor is overseeing this particular health condition during that period of time so that if you need more time off from work, you could substantiate to your employer by saying, ‘I’m going for regular appointments. I still just need a little bit more time.’” And then take it incrementally.
Number two: You want to keep your employer updated regularly and best practices are to do that in writing. So, as the end of your leave is approaching — not when your leave has ended, but when your leave is almost over – give your employer some time. Say, “Hey, listen, my leave is scheduled to end on X date. I need more time. Here’s why,” and make sure that, when you put that in writing, you have the justification by way of a medical note or whatever it may be from your provider. You want to keep these communications in writing, and you want to keep your employer posted. We don’t want employers that are saying, “Hey, this employee just went AWOL. You know, she went on FMLA leave. We never heard from her again.” That’s where Connecticut employees get themselves into trouble.
Goodbaum: Okay, Amanda, this is very useful information, but if I am an employee and I’ve extended my leave with my employer and they’re agreeing that I can take more than 12 weeks, does that mean that, at the end of that extended leave, I still have the right to be reinstated to my same job because I started that leave as an FMLA leave?
DeMatteis: That’s a great question.
Let’s remember that there are two potential causes of action under the FMLA: one for retaliation, one for interference. There is a portion of the FMLA which entitles eligible employees to be returned to “the same or substantially the same position” at the conclusion of that qualifying leave. I use language from the statute there on purpose, Josh, because if it’s not a qualifying FMLA leave, then that employee does not have a right to be reinstated to the same or substantially the same position at the end of the leave.
So, what do we do about that? You need to get agreement with your employer that this extended period of time that you are not at work is an extension of your FMLA entitlements. If you don’t do that and you stay out 24 weeks instead of 12, then you are not entitled at the conclusion of that 24 weeks to be reinstated to the same or substantially the same position at the end of that leave. Why? Because the latter 12 weeks were not qualifying FMLA leave under the statute.
So, this is tricky, and again, if you find yourself in this position as a Connecticut employee, it’s best to talk to an employment lawyer. When you’re out because of an injury, an illness, or any type of serious health condition of your own, there’s a lot of different state and federal laws that are triggered at the same time, and it’s complicated. Talk to an employment lawyer that knows how all of these laws work together. That’s going to offer you the best protection at work. It’s going to provide your employer with the most clarity about what you’re asking for and what you need, and it’s going to give you some peace of mind because you could get lost in all these laws – understandably so – and having someone that deals with these issues every day is going to be a huge benefit to you.
Goodbaum: That’s great information, Amanda, and great advice. Thank you so much. Thank you all for watching, and we will see you next time. Take care.