Employment Law – Frequently Asked Questions

What is FMLA?

FMLA stands for the Family Medical Leave Act. The act provides an eligible employee up to 12 weeks of unpaid leave during any 12-month period for a variety of reasons. The reasons include, but are not limited to:

  • The birth and care of a newborn child of the employee;
  • Placement with the employee of a son or daughter for adoption or foster care;
  • To care for a spouse, son, daughter or parent with a serious health condition;
  • To take medical leave when the employee is unable to work because of a serious health condition;
  • For qualifying situations arising out of the fact that the employee’s spouse, son, daughter or parent is on active duty or called to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

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Am I eligible or entitled to FMLA leave?

It depends. Employees are eligible to take leave under the Family Medical Leave Act (FMLA) if they work for an employer who has at least 50 employees within 75 miles of the location at which the employee worked. Added to that, the employee needs to have worked for the employer for at least 12 months and in that 12 months have worked at least 1250 hours.

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What is a serious health condition under FMLA?

The term serious health condition is one that is constantly being interpreted by the courts. As a general rule, a serious health condition is any condition that prevents the employee from performing their job or requires the employee to care for a family member which requires the employee to be away from their job. Some examples of serious health conditions are:

  • pregnancy, prenatal complications, or the adoption/fostering of a child;
  • hospitalization;
  • out-patient surgeries;
  • medical conditions that are chronic in nature, such as hepatitis or diabetes;
  • medical conditions that are long-term conditions, such as Parkinson’s, cancer, or heart disease;
  • any medical condition that requires ongoing treatment, such as dialysis for kidney failure or chemotherapy for cancer treatment.

Again, the above is a list of some conditions, but not an exhaustive list.

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Can my employer fire me if I do not return on time from FMLA?

Yes. If you have exhausted all of your FMLA time or your doctors indicate that you are able to return on a certain date and you do not return on that date, your employer may fire for not returning to work. The Family Medical Leave Act only protects you when you are out on a covered leave and you still have time left in the 12-week time period. Of course, there is recent case law that states in very limited situations a few more days or even a few more weeks of leave after FMLA has expired can be considered a reasonable accommodation under the Americans with Disabilities Act, or ADA.

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Are you paid during FMLA leave?

No. FMLA is an unpaid leave. The employer has no duty to pay you during this time, however some employers do have policies to pay those who are on FMLA. It is best to check with your HR department regarding whether or not your FMLA leave will be paid.

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Do I have to take all 12 weeks of FMLA at once?

No. There are two types of FMLA leave. One is called intermittent FMLA leave in which a person takes their 12 weeks in short intervals, such as somebody who needs to go every week for dialysis. The other is continuous FMLA, which is taking a large block of FMLA at once such as for a pregnancy or another serious health condition.

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Is my job protected while on FMLA?

Yes. Under FMLA, it is illegal for an employer to fire you solely based on the fact that you have requested, taken or currently are out on FMLA. When you return from FMLA your employer must reinstate you to the exact same position, job, pay and benefits that you had prior to taking the leave.

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Do I need to provide medical information and records to my employer before I take FMLA or during my FMLA leave?

Yes. Under the FMLA your employer is required to obtain medical documentation that proves a serious health condition for you or a member of your family. Your employer may also send requests to you or your doctor to update medical records and verification forms under the FMLA to make sure that the doctor still feels that you need leave and to determine your return-to-work date.

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Can an employer make me use my vacation, sick or PTO (paid time off) first before applying for FMLA?

Yes. Some employers have a policy that you must exhaust your vacation, sick leave, or PTO before going on Family Medical Leave. Also, while on FMLA, time does not accrue toward seniority or the compilation of time toward other benefits. However FMLA leave cannot be used against an employee with an employer that has a no-fault attendance policy.

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In the State of Florida, does my employer need “cause” to fire me?

No. Florida is a right to work state, which means an employer can fire you for any reason as long as it is not a discriminatory or “bad” reason. Your employer may have violated the law if you are fired because of any of the following:

  • race
  • gender (your sex)
  • age
  • national origin
  • disability
  • sexual harassment
  • use of Family Medical Leave Act
  • exercising your rights for equal pay, overtime, or workers’ compensation
  • seeking the rights of others to be free from discrimination or harassment

If you feel you have been wrongfully terminated, call Tucker Law Group and speak to one of our attorneys today.

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Does my employer need to discriminate or harass me directly for State and Federal civil rights and employment law to protect me?

No. If your employer is discriminating, harassing or using unfair wage/pay practices against a coworker, and you complain about it, your employer cannot retaliate against you. The law also protects you if you refuse to participate or speak out against violations of State and Federal civil rights law or unfair pay practices. If you feel that you have been the victim of unfair treatment at work after speaking out against your employer’s illegal actions, please call one of our attorneys to discuss your situation.

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Do all employers in Florida have to pay minimum wage to their workers?

Yes. Florida and Federal law make sure that hard-working Americans make at least minimum wage.

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Do employers in Florida have to pay overtime to all of their employees?

Whether an employee is entitled to overtime depends on the job the employee is doing and other factors. Just because you are paid a salary does not mean you are not entitled to overtime. This can be a very technical area of the law. To find out if you are entitled to overtime, call one of our Florida overtime attorneys to discuss your rights.

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Are all employees covered by State and Federal civil rights law?

No. State and Federal civil rights laws have different requirements. One key difference is the number of employees an employer has to have for a particular law to apply. For example, Federal sexual harassment laws only apply to employers with 15 or more employees. However, there may be State and County laws that apply to employers with fewer employees. Other types of discrimination may have different requirements under the law, including the number employees working for the employer. To find out if you are protected at your employer, call and speak to one of our Tampa Bay area discrimination and harassment attorneys or contact us online.

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