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Living with PNH: Understanding the Family Medical Leave Act

What type of documentation do you need to take advantage of the Family Medical Leave Act?  Attorney Chris Mills answers questions from Leigh Clark, Director of Paitent Services at AAMDSIF.

Podcast Series: 
Living with PNH

Leigh Clark:    Hi, everyone. Welcome to the Living With PNH podcast. I'm Leigh Clark, director of patient services. The Living With podcast series is brought to you by an educational grant from Novartis. The information you're about to hear is for informational purposes only and may not be considered legal advice. Each individual's circumstances vary and you should consult with an attorney about your specific circumstances. Today we're going to be talking about the Family Medical Leave Act with attorney Christopher Mills. Hi, Chris. Thanks for joining us today.
Chris Mills:    Hi, Leigh. Thank you.
Leigh Clark:    What is FMLA?
Chris Mills:    So, the FMLA is the Family Medical Leave Act of 1993. It is a federal law that provides protections to employees for taking leave for medical reasons from their job.
Leigh Clark:    Who qualifies for FMLA?
Chris Mills:    So, there's two parts to qualifying for the FMLA. One, uh, the employer must be covered by the law, and two, the employee has to meet certain requirements with respect to their employment. For the employer, uh, it covers private employers who have 50 or more employees in 20 or more weeks in the current calendar year or the previous calendar year, and it also covers federal and state governments and local educational agencies. For the employee, you have to have worked for your employer for 12 months, the past 12 months, prior to taking leave and you have to have worked at least 1250 hours during that 12 month period, and you also have to be employer at a work site where there's 50 or more employees within 75 miles of that work site. So, there's a lot of little requirements there, but the summary is your employer has to have at least 50 or more employees and you have to have, you know, been working more than 1250 hours at the last year at your job.
Leigh Clark:    Are you required to prove you have a serious health condition to use FMLA, and if so, what documentation will be required?
Chris Mills:    You do have to have a serious medical condition, and that's not a concrete test, but it... it's something more than, something that would go away quickly, like a cold. For example, it's something that required, you know, a day or two at the hospital, uh, you were incapacitated for like three days at home, you had multiple medical appointments for one condition, you have a chronic disease, which results in, uh, incapacitation, which might require treatment, pregnancy. Things like that are serious medical conditions. I think PNH, uh, for the most part would likely qualify, unless you have a very mild version that doesn't really require intervention. In which case you probably wouldn't need FMLA anyway. For the most part,  I think it would qualify if you're getting, you know, periodic treatment or have some, you know, periods of incapacitation or hospital stays.
    In terms of documentation, your employer can ask you for medical certification of your condition. Um, they don't have to ask for that, but they can, and if they ask for it, you have to provide it. You should just go to your doctor. You know, most doctors completely understand this requirement and have something they'll fill out for you, and if you provide that to your employer, that should satisfy it. And I just also note, Leigh, that you should give 30 days’ notice if you can. So if you know you're going to have a hospital stay, you know, a month from now, you should give your employer that notice, and if you can't give that much l- notice, if it's urgent, then you just provide as much notice as you can.
Leigh Clark:    Thanks, Chris. Being diagnosed with a rare disease such as PNH can cause emotional distress for patients. Can FMLA be used to see a mental health professional?
Chris Mills:    It can, and it would just have to satisfy the same test. It would be something chronic or something that, you know, is a long-term condition that you need, you know, multiple appointments for or treatments for, but in general, yes, mental health is also covered.
Leigh Clark:    Chris, does FMLA need to be used all at once or can it be used intermittently?
Chris Mills:
So under the law, you are entitled to 12 weeks of unpaid leave during a one-year period and you can use paid vacation, such as personal, sick or family leave, as part of the 12 weeks and your employer can require to do so. So that means if you have four weeks of vacation leave, you can use those four weeks of paid vacation leave and then still have eight weeks of unpaid FMLA leave.
    In terms of intermittent leave, you can take intermittent or incremental leave under FMLA. For example, you might take four hours for an appointment instead of a whole eight hours. And you can use FMLA in the smallest increment your employer normally allows, but your employer cannot make you take more than one hour increments of leave.
Leigh Clark:    Is an employee's job secure while they're using FMLA?
Chris Mills:    Generally, yes. So, as long as you're able to return to work before you exhaust your 12 weeks of leave, your employer must, uh, return you to the same job or a nearly identical job. Now, you're not 100% protected because you could be laid off from your job just like in any other circumstance, right. If your  employer goes out of business or it shuts down your division while you're on FMLA, you're treated just like everybody else, but your employer cannot lay you off just because you were on FMLA leave, and there's a few related protections. Um, time off under FMLA can't be held against you in terms of hiring and promotions, and last, your employer needs to continue your benefits, like health insurance, as if you weren't on leave, but a note here that, uh, for example, health insurance, if you have a copay but you're not receiving a check, you may have to make your normal contribution. So that's something you should coordinate with, uh, your benefits people.
Leigh Clark:    Great. Thanks, Chris. Oh, what are your options, uh, if you're denied FMLA or you're being treated unfairly while on FMLA?
Chris Mills:    Enforcement of the Family Medical Leave Act is overseen by the Department of Labor. That's the Federal Department of Labor, the Wage and Hour Division. You can file a complaint with the Department of Labor to request an investigation into the denial of your leave. In most cases, you also have the right to file a private lawsuit in, uh, federal or state court with... with jurisdiction, but all of this, you know, I would talk to an attorney, and most importantly, if you do think you're improperly denied and want to take action, there's almost always time limits, so you should talk to an attorney right away to make sure you're not, uh, running afoul of any limitations on when you can file.
Leigh Clark:    And what else do you think PNH patients should know about FMLA?
Chris Mills:    I would say two other things. One, state laws can also impact your leave, right. So, some states have more expansive rights related to medical leave. So states can't, allow an employer to give you less than what FMLA does, but it... they can give you more, and some states, um, do allow, uh, for additional protections, like some states have, uh, paid medical leave rather than unpaid, and there's a... just a few states doing that now, but I think a number of them are considering it. Um, also, one thing I didn't mention above the... the protection also... you can take FMLA for parent, child, and spouse care, so not just for yourself, but if your spouse, parent, or child also needs care. FMLA covers that as well. And my last piece of guidance is always consider, uh, your circumstances if you're considering changing jobs and you... you've been diagnosed because as we talked about, your clock would start again. Your one year clock to qualify for FMLA if you change employers would restart, and so that's something you'd really want to make sure you did intentionally.
    So we just talked about all the highlights of the FMLA and we can't cover everything in the... in a short podcast, but,  the big picture issues to think about and there's nuances to everything we discussed, so if you have a specific question or you need specific guidance on your circumstances, please, you know it's best to talk to a lawyer.
Leigh Clark:    Thank you so much, Chris, for sharing your time and your expertise with all of us. If you'd like to learn more about FMLA, please visit our website, Under the education tab, you'll find a recorded webinar about FMLA, along with a downloadable print information. While you're on the website, check out the PNH patient toolkit. This toolkit was designed to help you learn more about PNH and managing your healthcare. Please remember the information provided in this podcast was for informational purposes only and may not be considered legal advice. Each individual circumstances vary and you should consult with an attorney about your specific circumstances. Thank you for listening.