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Next Back to Employee Rights Resources Back to TLSC Home PageDisclaimer: The information presented in these pages is for educational purposes only, and does not constitute legal advice. Every case is different, and the correct legal answer always depends on the facts of the individual case. If you want a legal opinion about your own employment law problem, you should seek help from a licensed attorney.
This pamphlet explains certain rights of employees who are parents of a new child, who have a serious illness, or who need time off from work to care for a loved one who is seriously ill. If you have further questions about your family and medical leave rights, call the Employee Rights Project at Bexar County Legal Aid.
Under a law called the "Family and Medical Leave Act," family and medical leave is a period of time you take off work, without pay:
This is sometimes called a "leave of absence."
If you are eligible for family and medical leave, you may take up to 12 weeks off work, without pay. You need not take the time all at once, but you are limited to 12 weeks in any 12-month period. If you get health insurance through your employer's group plan, your employer must keep giving you health insurance during the time off, just as if you were still working.
When you go back to work, your employer must return you to the same job or to another job with the same pay, status, and benefits. If you lose your health insurance because you can't pay the premiums during your time off, you are entitled to get your insurance back when you return to work.
With a doctor's recommendation, you can to take part-time leave for your own serious illness or a family member's serious illness. Your employer can choose whether to give you part time unpaid leave to care for a new child -- if you are allowed to do this, you must take the leave during the first year after the new child becomes a part of your family.
Your employer can count paid time taken as sick leave and vacation against the 12-week limit for family and medical leave, if the reason you took the sick leave or vacation time is one that would qualify you for family or medical leave. Your employer must tell you that leave will be counted against your 12 weeks of family and medical leave within two business days after you ask for the paid leave time. (This rule keeps your employer from deciding after-the-fact to count paid leave against your family and medical leave.)
Even if you would rather take unpaid leave, your employer can make you take your accrued paid leave at the same time as your family or medical leave. Your paid leave would then count against the 12-week limit on family and medical leave time.
Your employer's leave policies must at least give you the benefits guaranteed by the Family and Medical Leave Act. In some cases, an employer's policy may give you better benefits or may make leave time available even if you do not qualify under the Family and Medical Leave Act. Also, even if you have do not qualify for leave under the law or your employer's policies, your employer may still be willing to work with you to accommodate your needs.
If your employer agrees to give you leave benefits that are not spelled out in your employee handbook or guaranteed by federal law, make sure you have your employer's promise in writing and save a copy for your records.
You are eligible for family or medical leave if you meet all of the following conditions:
There are basically four ways of defining a "serious health condition":
A person has a "serious illness" if one of these four definitions applies, even if the illness is not expected to last long.
Having a "serious illness" does not automatically mean that you are considered legally disabled. But sometimes, a "serious illness" will be considered a disability under laws such as the Americans with Disabilities Act. If you are disabled, you may be entitled to extra unpaid leave as an accommodation for your disability. You will also have more legal protection against certain kinds of unfair actions by your employer. Depending on the severity of your disability and what caused it, you might also eligible for Social Security benefits, Worker's Compensation benefits, or benefits under private disability insurance while you are out of work. If you think you may be legally disabled, contact Advocacy, Inc., or the Employee Rights Project for more information about your legal rights.
You can take family or medical leave during your pregnancy (1) to visit the doctor for pregnancy-related care; (2) if a pregnancy-related condition makes it necessary for you to stay home; OR (3) to recover from childbirth.
Yes. The Family and Medical Leave Act applies equally to men and to women.
If you know in advance that you will need time off, you should tell your boss at least thirty days in advance. Explain your situation and ask for family or medical leave. If your employer has a policy for leave requests, try to follow the steps outlined in the policy.
In an emergency, you should tell your boss as soon as possible -- do not wait more than 1 or 2 business days.
It's a good idea to provide a doctor's note when you make your request, but you don't have to do this unless your employer asks for one. If your employer asks for a doctor's note, you have 15 days to provide it. The note only needs to contain enough information to allow the employer to decide whether you are eligible for family or medical leave. Your employer has the right to get a second or even a third doctor's opinion, to confirm what the first doctor says. Your employer must pay the cost of any additional doctor's opinions.
Keep a record of everything that happens concerning your request for time off. Save any written documents that relate to your request. Make a note of the dates when you talked to your employer about your request, who you spoke with, what was said, and the names of any witnesses.
If your company has a complaint process, file a complaint. If you belong to a union, get your union to help you make a grievance. Find out if other employees have been denied leave, and try to work together to get your employer to obey the law. Meanwhile, try your best to keep doing a good job at work.
If you have followed all your employer's procedures and you believe your employer is acting unfairly or breaking the law, you may make a complaint at the Wage and Hour Division of the U.S. Department of Labor. Filing a complaint may be enough to make your employer obey the law. You may also call the Women's Bureau of the Department of Labor for more information about your right to take leave.
If you qualify to take family and medical leave, it is against the law for your employer to fire you or discipline you for taking the time off. Also, family or medical leave time cannot count against you under your employer's absenteeism policy.
If you are punished for taking time off, you can file a complaint with the Wage & Hour Division of the Department of Labor. If necessary, you can file a court action against your employer to get your job back and recover any wages or benefits you lost. Although you have two years to file a complaint or lawsuit -- or three years if your employer's action was "willful" (deliberate) -- it is always best to file your complaint as soon as possible. For more help, contact the Employee Rights Project or call the San Antonio Bar Association to get the name of a private attorney who can take your case.
U.S. Department of Labor
U.S. Department of Labor
Women's Bureau
(800) 827-5335 or (800) 326-2577 (TDD)
San Antonio Bar Association
Lawyer Referral Line
(210) 227-1853
Employee Rights Project
Bexar County Legal Aid
123 Ascot
San Antonio, TX 78228
(210) 922-5893
Advocacy, Inc.
(800) 315-3876 (v/TDD)
© 1998 Bexar County Legal Aid Association
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Next Back to Employee Rights Resources Back to TLSC Home PageThis page was last updated on: 01/03/02