Leave of Absence
Workers who need to take leave due to their own health needs, or a family member’s health situation, may be eligible for job protection. The Family and Medical Leave Act (FMLA) and New York’s Paid Family Leave Act (NYPFL) provide significant protections. Employees may also be eligible for job protection and benefits based on contract agreements or the laws of other states if they live or work outside of New York. If you are seeking to take a leave of absence, the attorneys at Frontera Law can help you review your options and discuss eligibility for coverage.
The Family and Medical Leave Act (FMLA) is a federal law that guarantees eligible employees up to 12 weeks of unpaid leave per year without the risk of being terminated. FMLA leave can be used for the following situations:
- the birth of a child or placement of a child for adoption or foster car;
- to bond with a child (leave must be taken within one year of a child’s birth or placement);
- unwelcome remarks or actions regarding sex, gender, or sexual orientation.
- to care for the employee’s spouse, child, or parent who has a qualifying serious health condition;
- for the employee’s own qualifying serious health condition that makes the employee unable to perform the employee’s job;
- any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”
To qualify for FMLA, employees must have worked for their employer for at least 12 months, worked at least 1,250 hours during the most recent 12 months, and the employer must have at least 50 employees.
When an employee returns from FMLA leave, the employee is entitled to be restored to his or her previous position or an equivalent position with no loss in benefits. Employers must continue health insurance coverage as if the employee was not on leave.
New York’s Paid Family Leave Act (NYPFL) provides eligible employees in New York with up to 12 weeks of job-protected, paid time off for the following reasons:
- to bond and care for a newborn, adopted, or fostered child;
- to care for a family member with a serious health condition;
- to assist loved ones when a spouse, domestic partner, child or parent is deployed abroad on active military service.
Most employees who work in New York State for a private employer will be eligible for Paid Family Leave. However, eligibility does not start until: (1) full time employees have worked at least 26 weeks, or (2) part time employees have worked at least 175, which do not have to be consecutive. Once employees reach the eligibility threshold based on the amount of time worked, they remain eligible for NYPFL until their employment ends with that employer.
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Frequently Asked
Questions
The FMLA defines serious health conditions as follows:
- conditions requiring an overnight stay in a hospital or othermedical care facility;
- conditions that incapacitate you or your family member for more than three consecutive days and have ongoing medical treatment;
- chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and pregnancy.
No, you are not required to share any medical records with your employer. However, your employer may require a doctor’s certification. The employer may also require a second or third medical opinion (at the employer’s expense) if he or she has reason to doubt the validity of the medical certification.
If you fail to provide medical certification of your serious health condition, your employer may have the legal right to end your leave early. However, if you have provided the appropriate certification(s), your employer cannot request or require that you return to work early, including by offering part-time work.
No. You can choose to take less than 12 weeks of leave and may be eligible for intermittent leave which allows for the employee to take FMLA leave on an intermittent or reduced schedule basis. This means that the employee can take leave in separate blocks of time or by reducing a daily or weekly schedule to have time to address the serious health condition. Note, however, that FMLA leave for the birth of a baby or bonding with an adopted or foster child must occur within the first 12 months of the baby’s life or placement of the child with the employee.
Employers are only required to provide 12 weeks of protected leave time per year under the FMLA. If you need more time off, you must discuss that with your employer. You may be allowed to use additional accrued vacation days, or paid time off but that depends on the employer. Employers are allowed to substitute your accrued paid leave for FMLA leave. If you have questions about any of this, please contact Frontera Law to discuss your options.
FMLA leave is unpaid. However, you may choose to substitute accrued paid leave for unpaid FMLA leave if doing so complies with the terms and conditions of the employer’s applicable paid leave policy. If you do not choose to substitute applicable accrued paid leave, your employer is authorized to require you to do so.
Your health insurance remains the same as what it was before the leave period started. Your employer may not change your coverage because you are on leave.
If you believe that your rights have been violated, please contact Frontera Law. You have two years from the date of the FMLA violation to bring a claim (or three years if the employer acted willfully) and may be entitled to monetary damages, reinstatement, or a work promotion depending on your individual situation.
No. Your leave can be taken either all at once or intermittently, but must be taken in full-day increments.
You must notify your employer at least 30 days before the start of leave when possible to give such notice. Otherwise, you must notify your employer as soon as possible.
You are required to submit various documents when applying for Paid Family Leave. Your employer should be able to provide the documents needed but if you have any questions about the paperwork or the process, please contact us at Frontera Law.
Employees who take Paid Family Leave will receive 67% of their average weekly wages, capped at 67% of the New York State Average Weekly Wage rate. The maximum weekly benefit for 2022 is $1,068.36 and for 2023 it is $1,131.08.
Your health insurance remains the same as what it was before the leave period started. Your employer may not change your coverage because you are on leave.
New York State has specific procedures in place that must be followed if you believe that you were discriminated against, retaliated against, terminated, or demoted due to your usage of Paid Family Leave. If you believe that your rights have been violated, please contact Frontera Law.
