If severe and long-lasting enough, your client’s health issues might eventually be found disabling by the Social Security Administration. However, many health issues are temporary, and many employers have little tolerance for if a worker’s illness might impact their business. A client might need help to preserve or regain a job, and an employer might respond to your reaching out to explain some illegality. You might need to help your client pursue other remedies or refer them elsewhere. There is no generally applicable state law providing the average at-will employee with paid sick or personal leave. However, even a client with no rights under contract may be in a particular occupation with special statutory rights.1  Employer policies and customs may also provide an employee with enforceable rights. Finally, employees seeking leave because of their own health problems may be able to secure additional leave as an accommodation under the Americans with Disabilities Act (ADA) or other legislation.

• 1See, e.g., La. R.S. 17:46, et seq.; La. R.S. 17:411, et seq. (certain teachers).

The Family and Medical Leave Act of 1993 (“FMLA”) provides covered employees with up to 12 weeks of unpaid leave during a year’s time for: the birth, adoption, or foster placement of child (within 1 year of child’s arrival); health needs of an employee or immediate family member; or a qualified exigency related to the employee or family member’s duty in the Armed Forces.1  During FMLA leave, an employer must maintain pre-existing employment benefits for the employee. Of course, an employer may provide greater benefits either voluntarily or through contract. Retaliation for exercising (or interference with) FMLA rights is prohibited.

The FMLA covers most employers, but private sector employers must employ at least 50 employees in a 75-mile radius in 20 or more workweeks in the current or preceding calendar year and be engaged in commerce or any activity affecting commerce. Employees must have been employed at the same workplace for 12 months or more and have worked at least 1250 hours (about 24 hours/week) during the year before taking leave. Employers may exempt certain otherwise eligible employees or set conditions on leave for others.

• 129 U.S.C. § 2601, et seq.

FMLA leave is limited to “serious” health conditions. This means an illness, injury, impairment, or condition that involves inpatient care or continuing treatment by a recognized health care provider. An employee need not be physically unable to work. An employer may require certification by a health professional, second or even third opinions at the employer’s expense, and re-certifications on a reasonable basis. Leave may be intermittent when medically necessary and not unduly harmful to the employer’s business. Employers may require, or employees may elect, to use up paid leave first.

An eligible employee seeking to use FMLA leave must provide 30-day advance notice, unless the need for leave was not foreseeable and/or notice was not practicable. While notice need not be in writing, it is well-advised. When requesting leave, FMLA need not be mentioned by name; notice will be sufficient under the act if the employee provides the employer with enough information to put the employer on notice that FMLA-qualifying leave is needed. An employer may place an employee on involuntary FMLA leave if the employee has given notice to the employer of a qualifying reason for absence that would trigger FMLA rights.

An employee generally—but not always—has the right to return to the same or equivalent position (i.e., terms, conditions, pay, and privileges must be the same). An employee may be fired during FMLA leave if the employer has reasons unrelated to the taking of leave. During the leave, an employer must make the same insurance benefit contributions. However, seniority and pension benefits need not accrue during leave. If an employee does not return to work at the end of approved leave, the employer may recoup health insurance premiums.

The U.S. Department of Labor enforces the law. Most federal employees must seek enforcement through the U.S. Office of Personnel Management. DOL will investigate and may bring suit on its own. A private suit under the act may be brought within 2 years of a violation (3 years if the violation was willful).