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Washington Watch | Health & Safety | Workplace Rights

Workplace Rights

American Journal of Nursing - October, 2000 - Volume 100, Issue 10

When Care is Needed at Home
Your rights under the Family and Medical Leave Act

By Bich-Quyen Nguyen, JD, Esq.

Q. My 67-year-old mother broke her hip in a fall and is unable to care for herself, so I’ve been taking time off from work to help her. Do I have a right to medical leave?

A. Possibly. The Family and Medical Leave Act (FMLA) of 1993 provides some relief for working adults who need to care for a family member or for themselves. The law requires employers with 50 or more employees to provide up to 12 weeks’ annual unpaid leave to an eligible employee for the birth, adoption, or foster care placement of a child; for the care of a seriously ill child, spouse, or parent; or for the employee’s own serious illness. Employers must restore that employee to the same or an equivalent position upon her return to work.

Shifting Demographics

When the American Journal of Nursing was first published in 1900, three million Americans were age 65 or older, and today the number has risen to more than 34 million. American women and men in 1900 could expect to live 48 and 50 years, respectively; today’s life expectancy for women and men is 79 and 74 years, respectively.

By the end of the 20th century, working adults were caring for elderly relatives increasingly. The National Center for Health Statistics states that “although most of the home care received by older persons with disabilities is unpaid, the use of informal care as an exclusive means of assistance is declining.” ¹ Still, during 1996, for example, at least one adult in nearly 25% of households provided care for a person over age 50, according to the National Alliance for Caregiving.

FMLA Eligibility

To be eligible for family or medical leave under the FMLA, you must be employed by the same employer for at least 12 months and must have worked at least 1,250 hours in the 12 months preceding the leave.

A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that requires either inpatient care or continuing treatment by a health care provider. Under the FMLA, your employer may require that your mother’s health condition be medically certified, including medical facts about your mother’s condition, its probable duration, any need for intermittent or reduced leave, and any other information relevant to the situation. The employer may require certification to show whether your mother requires your assistance to meet her basic needs, and if not, whether your presence would give her psychological comfort.

Some state laws provide for the same or superior rights as the federal law does (you receive whichever benefits are greater). Employers must comply with provisions of both federal and state laws. In addition, your employer must comply with any provision in a collective bargaining agreement that offers more generous family or medical leave rights.

If your request for leave is denied and you believe your employer has violated your rights, you may file a complaint with the Wage and Hour Division of the U.S. Department of Labor, which enforces the FMLA. You may also bring a civil suit against your employer or obtain the assistance of the secretary of labor to file a suit on your behalf. Should you win, you may be able to recover lost wages, salary, or employment benefits, along with attorney’s fees and court costs. If your facility has a collective bargaining agreement with a provision for leave, you may invoke a grievance procedure.

Finally, your employer or your collective bargaining agreement may offer other programs that can help you care for your mother. Special work arrangements may be implemented: flex-time (allowing for flexible arrival and departure times as well as the “banking” of worked hours for credit), compressed work weeks, telecommuting, part-time hours, and job sharing. Your employer may also provide referral programs, long-term-care insurance, adult day care, and community-based programs for elder care.

References

¹ Federal Interagency Forum on Aging-Related Statistics. Older Americans 2000: key indicators of well-being: health care. 2000.

Visit the FMLA web site for more information on FMLA or contact the nearest U.S. Department of Labor office.