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You're pregnant and want to take an extended leave when the baby is born. An elderly parent is suffering from major medical problems, requiring that you take an extended leave to attend to his or her needs. What do you do? If you take a leave of absence for several months, will there be a job when you return?
These kinds of dilemmas have become increasingly common to employees in all walks of life. Firefighters are no exception. Thus, in 1993, Congress enacted the Family and Medical Leave Act.
This law, which covers some 67 million employees, requires that all public employers (and private employers with more than 50 employees) provide up to 12 weeks of unpaid leave each year for absences due to:
- Birth of a child.
- Adoption of a child.
- Need to care for an immediate family member (a spouse, child or parent) because of a serious health condition.
- A serious health condition that makes the employee unable to perform his or her job.
An employee's health insurance must be continued in effect during this time. Further, the law prohibits employers from discriminating against employees who take family leave. This means that the fire department must reinstate the employees to the same or an equivalent position upon return to work. They must be given equivalent pay, benefits, status and authority. Further, an absence on family leave cannot be used as a negative factor in performance evaluations, decisions about bonuses, promotions or disciplinary actions. It is illegal to deny a promotion because the employee took family leave for an extended period.
The law also gives employers options. In order to be eligible for family leave, the employee may be required to have worked for at least 1,250 hours over the previous 12 months. The leave can be limited to 12 weeks in the past 12 months. The employer may insist that the employee use all accrued sick and annual leave as a part of the 12-week period. In other words, the employee may be prevented from using accrued leave in addition to the permitted family leave. Also, the employer may require 30 days' advance notice before the beginning of the family leave, if the leave was foreseeable.
If an employee uses family leave for a personal medical condition, the employer may require medical certification of need for leave or require a fitness-for-duty certificate upon returning from leave. This is likely in the fire service, which often is stressful and requires significant physical abilities. The law also appears to authorize the longstanding fire service practice of assigning injured personnel or those with a medical problem to light duty.
There also are provisions for part-time employees. The leave entitlement is calculated on a pro rata basis for part-time employees and those who work variable hours. The weekly average of the hours worked during the 12 weeks prior to the beginning of the leave would be used for calculating the employee's normal work week.
An employee may take this leave intermittently (a few hours or days at a time) either to care for a family member or because of his or her own medical necessity. This would be especially helpful when there is a need for frequent medical appointments. If an employee takes this intermittent leave for birth or for an adoption, however, it can be done only with the department's consent.
This option can create special problems for fire departments that must provide continuous coverage throughout the shift for each position on the apparatus. Thus, the law permits an employee to be transferred temporarily to a position (with equivalent pay and benefits) that better accommodates these recurring absences. A firefighter may be transferred to a fire prevention or administrative position. Again, however, the employee must be returned to prior status at the end of the absences.