In order to obtain FMLA benefits, employees must abide by certain rules such as giving adequate notice and getting a doctor’s certification when necessary. Once they return to work, they should be restored to the same job they had before and with the same benefits.
In this article, our Las Vegas family law attorneys discuss how the Family Medical Leave laws operate in Nevada:
- 1. Definition
- 2. Eligibility
- 3. Notice
- 4. Required certification
- 5. Job restoration
- 6. Additional provisions
- 7. Enforcement
The Family Medical Leave Act (FMLA, “the Act”) permits eligible employees of covered employers to temporarily take time off of work to tend to their own or their family’s health issues. This time off is unpaid but job-protected, and their group health insurance coverage continues as before.
Specifically, eligible employees are entitled to:
(1) 26 weeks of unpaid leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin; OR
(2) 12 weeks of FMLA leave in a 12-month period for the following reasons:
- The birth of a child and to care for the newborn child within one year of the child’s birth;
- The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- To care for the employee’s spouse, child, or parent who has a serious health condition;
- A serious medical condition that makes the employee unable to perform the essential functions of his or her job (sick leave); and
- Any qualifying exigency arising out of circumstances involving the employee’s spouse, son, daughter, or parent as being a covered military member on “covered active duty”.1
As stated above, FMLA includes only “covered employers.” Under the law, a covered Nevada employer is defined as one who is:
- A private employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
- A public agency, including a local, state, or federal government agency, regardless of the number of employees; or
- A public or private elementary or secondary school, regardless of the number of employees.
Along with covered employers, it is helpful to understand the term “eligible employees.” One is only allowed to take FMLA leave if he or she is considered to be an eligible employee. This is an individual who meets these eligibility requirements:
- Works for a covered employer;
- Has worked for the employer for at least 12 months;
- Has a minimum of 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and
- Works at a location where the employer has a minimum of 50 employees within 75 miles.2
Generally, an employee must abide by his covered employer’s usual requirements for requesting time off. The purpose is to provide the employer with enough information to determine whether FMLA will be applied to the request.
Typically, an employee must give his employer 30 days notice when the need for time off is foreseeable. If 30 days notice is not possible, the employee must give notice as soon as he can under the circumstances.
When an employee is requesting time off for an FMLA-qualifying purpose for the first time, the employee does not have to expressly assert FMLA rights. If an employee requests additional leave for the same qualifying condition, the employee must specifically make reference to either the qualifying reason for time off or the need for FMLA leave.
In order for this process to work, covered employers are required, under the law, to:
- Post a notice that explains both rights and responsibilities under the Act;
- Include information about the Act in the employee handbooks or provide information to newly hired employees;
- When an employee requests FMLA leave or the employer acquires knowledge that leave may be for an FMLA-qualifying reason, provide the employee with notice concerning his eligibility for FMLA leave and his or her rights and responsibilities under the Act; and
- Notify employees whether the leave is designated as FMLA leave and the amount of leave that will be deducted from the employee’s FMLA time off entitlement.3
Employees can ask their employer’s Human Resources department for the most current notice requirements, leave policies, and how to make leave requests.
If the leave involves an employee leaving due to his own serious health condition or a covered family member’s serious health condition, the employer may request certification from a health care provider that will certify the weeks of leave. An employer also has the right to ask for additional medical opinions.4
When an employee returns from his FMLA leave, he/she must be restored to his/her original job or an equivalent that has equal pay, benefits, and other terms of employment. An employer cannot consider this time off to be counted against any form of “no-fault” attendance policy.
Further, covered employers must continue the employee’s group health insurance coverage while the employee is on FMLA leave.5
Employees who work at local education agencies are provided with special rules. In most cases, these rules apply to intermittent or reduced FMLA leave or taking time off near the end of a set school term.
In addition, salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for an exemption from minimum wage and overtime will not lose their FLSA-exempt status by utilizing any unpaid FMLA leave.6
It is against the law for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under the FMLA. In addition, it is illegal for an employer to terminate or discriminate against any employee for opposing any practice, or because of involvement in any situation related to the Act.
In most cases, the Wage and Hour Division of the U.S. Department of Labor is responsible for administering and enforcing the Act for the majority of employees. Further, most federal and some congressional employees are also covered by the law but are subject to the jurisdiction of the United States Office of Personnel Management or Congress.
When an employee has a complaint related to possible Act violations, he/she should file the complaint with the Wage and Hour Division or file a private lawsuit against the employer in a court of law.7
- 29 CFR § 825; NAC 284.52345; FMLA Overview for State of Nevada Executive Branch Agencies; U.S. Department of Labor.
- NAC 284.5811; 26 CFR § 825.104; 29 USCS § 2611.
- NAC 284.566; NAC 284.578; State v. Ludwick, 440 P.3d 43, 135 Nev. Adv. Rep. 12 (2019)(“29 C.F.R. § 825.303(c) (2018) provides that ‘[w]hen the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances[.]”)
- NAC 284.558.
- 29 CFR § 825.214.
- 29 CFR § 825.
- NAC 284.581.