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¡No Se Deje!
In 1993, President Clinton supported then signed the Federal Medical Leave Act (FMLA). This law gave important new rights to workers in this country. The law only applies to employers of 50 or more employees and to workers that have worked for the employer for at least 12 months and at least 1,250 hours during the previous 12 months. Eligible workers can take up to 12 weeks of UNPAID leave from their jobs to have a child, take care of a child, or to take care of a parents, spouse or child with a “Serious Health Condition”. A doctor must certify that the worker or covered family member has a “Serious Medical Condition”.
The most important benefit under the FMLA, is that the worker’s job is protected, meaning that the worker cannot be terminated, demoted, or in any way penalized for taking FMLA leave. The worker also has the right to use any paid vacation or sick leave that has accrued during the FMLA absence. In this way, the worker can have an income while on otherwise unpaid FMLA leave.
This important law was enacted to ensure that workers do not have to choose between keeping their jobs and being available to attend to serious medical conditions to themselves or to their immediate family members.
In the final days of the Bush Administration, that rules were changed for workers using FMLA leave. Workers and worker advocates were disappointed but not surprised that the new rules made it harder for workers to use FMLA benefits. Employers on the other hand are very happy with the changes.
SOME OF THE CHANGES TO THE FMLA, WHICH ARE EFFECTIVE ON JANUARY 16, 2009 ARE:
Workers must now follow the employers’ call in procedures for reporting absences and to notify employers that the absence will be an FMLA leave. Under the old rule, workers had 2 days after the absence began to notify employers that it was and FMLA leave.
Employers are now given 5 days to decide whether they must grant the leave under the FMLA. Under the old rule, employers had to decide within just 2 days.
The penalties against employers for wrongly denying FMLA leaves of absences have been eliminated. Removing this protection means that employers will not have any risk or loss if they incorrectly decide that the worker is not entitled to FMLA job protection. As a result, workers will almost certainly experience wrongful terminations when employers fire workers that take appropriate FMLA leaves.
Employers can require workers that take “intermittent” FMLA leave to present certification from a doctor to establish that they are “fit for duty”. This presents one more obstacle and opportunity for an employer to penalize workers for using FMLA benefits.
Restoring the lost benefits to workers, which were created under the 1993 FMLA, should be a goal of the Obama administration. His commitment to supporting the workers of this country is well established and should gives us all hope that these unfair changes will be reversed. ¡NO SE DEJE!®
Jess J. Araujo, Esq.