Apr 29, 2013 - 12:26 pm
Coloncancerblows posted regarding having to use her vacation time for cancer treatment ... thought I would post this information here on a new thread as it may be helpful to her or others in the US who are in a similar situation. Best. ~ Cynthia
This info is from the Cancer Legal Resurce Center Chronicle:
Taking Time Off of Work Under the Family and Medical Leave Act
When you, or someone in your family, has a serious illness like cancer, you may need to take time off of work to get treatment or to care for your loved one. The Family and Medical Leave Act (FMLA) is a federal law that guarantees up to 12 weeks of job and benefit-protected leave in a 12 month period for qualifying employees. FMLA leave can be taken for your own serious illness, or for that of a spouse, child, or parent. In California, you can also take leave to care for your domestic partner. FMLA leave can be taken all at once or as needed. It can be one day per week, one week a month, one month at a time, or any combination of shorter leave periods that a person needs.
Maintaining income and health benefits during FMLA leave
The FMLA does not require that your employer continue to pay you while you are on leave. However, if you have unused paid time off (vacation or sick leave) you can use those benefits in order to continue receiving pay while you are on FMLA leave. In fact, employers will often require you to use your paid time off (PTO) concurrently with your FMLA. If you do not have any PTO available through your employer, or if you have used up your PTO, you may be eligible for short term disability benefits. Disability benefits provide you with a percentage of your previous income while you are unable to work due to a disability. Some employers provide disability benefits to their employees. Union members often have disability benefits available through their union. The State of California also provides short term disability benefits (known as State Disability Insurance or SDI) to people who have paid SDI taxes during the year prior to their disability.
During FMLA leave, an employer must continue to provide health benefits if they were providing them prior to the leave, and must continue to pay whatever portion of the premiums they were paying prior to the leave. The employee is still responsible for any contribution they were making toward their health insurance premiums before their leave.
Who is eligible for FMLA leave?
In order to qualify for leave under the FMLA, you have to work for an employer that has 50 or more employees within 75 miles of where you work. Many employers, such as major corporations, have multiple worksites (factories or offices, for example). So, consider whether your employer has 50 or more employees within a 75 mile radius of your worksite.
Another requirement for FMLA leave is your work history. You must have worked for your current employer a minimum of 12 months (although the 12 months do not have to be consecutive) and a minimum of 1250 hours (a little more than part time if worked over an entire year) during the previous 12 months.
Your employer is required to give you information about your rights and responsibilities under the FMLA when you take FMLA leave. Your employer cannot terminate your employment or otherwise punish you for taking FMLA leave. When you return from FMLA leave your employer must allow you to return to the same job you had prior to leave, or an equivalent position with equivalent pay, benefits, and other terms and conditions of employment.
Once your 12 weeks have been exhausted for the 12 month period, the employer is not obligated to provide additional leave under the FMLA. However, you may be entitled to a definite period of additional leave time as a reasonable accommodation under the Americans with Disabilities Act (ADA).
An employer can still terminate your employment while you're on leave if they would have made the same decision even if you had not been on leave. For example, if your entire department was laid off while you were on leave, you would not be entitled to your job just because you were on leave.
The employee must provide 30 days advance notice when the need for leave is foreseeable. If the need for leave was not foreseeable, then the employee must give notice as soon as is practicable. This generally needs to be within one to two days of learning of the need for the leave.
The employer may ask the employee to obtain certification from a medical provider verifying the need for the employee to take the leave for themselves or for a family member. At the end of the leave the employer may require the employee to obtain a certification of fitness to return to work, if the leave was due to the employee’s own illness.