“If I’m sick or injured, does my employer have to give me time off?” This is a very common question employees ask attorneys, and the answer the attorneys give is even more common: “It depends.” Although we recommend you speak with your own attorney to get an opinion on the facts specific to your situation, your rights are generally going to depend on the answers to the following questions:
- How many employees does the employer have?
- Is the medical leave to care for yourself, or for someone else?
- Is the medical leave related to a disability?
- Is the medical leave related to an on-the-job injury or accident?
This article will go through each of the above the questions and why the are relevant to your rights as an employee.
What Medical Leave Laws Does My Employer Have to Follow?
To determine what rights you have to medical leave in the event of an illness or injury, the first question to ask yourself is, “How many employees does the employer have?” Most state, federal, and local laws dealing with an employee’s right to medical leave apply based on the number of employees, and there are a few magic numbers to keep in mind: 50, 15, and 5.
Can I Apply for FMLA?
If you are sick or injured and your employer has 50 or more employees within 75 miles of your worksite, then you may be in luck, because your employer most follow United States’ most comprehensive employee medical leave law, the Family and Medical Leave Act (FMLA). The FMLA allows eligible employees up to twelve workweeks per year to care for themselves or an immediate family member with a serious health condition.
Just keep in mind that the FMLA is a highly technical statute: for example, the terms “eligible employee,” “serious health condition,” and “immediate family member” are all terms of art with specific legal meanings. You are not an “eligible” employee unless you have worked at least 1,250 hours for this employer during the last 12 months prior to the start of your leave. A “serious health condition” is not just any condition like a common cold but must be an “illness, injury, impairment, or physical or mental condition that involves” either “inpatient care in a hospital, hospice, or residential medical care facility” or “continuing treatment by a health care provider.”
If you qualify for FMLA and your employer has notice of the need for FMLA leave, they have to grant up to twelve workweeks of unpaid leave. The leave will only be paid if you have some other source of paid leave, such as PTO or a short-term disability policy. When the leave is over, the employer must return you to the same or equivalent position. Your employer cannot interfere with your rights to FMLA, nor can they retaliate against you for taking or requesting FMLA leave. If the employer does violate your rights, they can be sued in federal court and have to pay your damages in addition to your costs and reasonable attorney’s fees in addition to reinstating you back to your original position.
Can I Take Medical Leave for My Disability?
What if your employer has fewer than 50 employees? Well, if your Florida employer has 15 or more employees, they will be subject to both the Americans with Disabilities Act (ADA) and the Florida Civil Rights Act (FCRA). Florida courts treat both the ADA and the FCRA almost identically. However, these laws only apply to disabilities—unlike the FMLA, which covers the much broader “serious health condition.”
For example, if you break your arm, that may be a serious health condition under the FMLA, but it probably is not a disability under the ADA because it is temporary in nature.
By way of another example, if you have a condition such as cancer, this is likely both a “serious health condition” under the FMLA and a disability under the ADA. The employer may be required to provide an ADA “reasonable accommodation” of leave to attend chemotherapy treatments during business hours. Also keep in mind that, unlike the FMLA, the ADA does not require employee leave to care for a family member with a disability—it only pertains to your own disability as an employee.
What is or is not a reasonable accommodation is often highly specific to the type of disability and the facts of situation, and for that reason we highly recommend you consult with an attorney to know where you stand.
Are You Covered Under a Local Law?
What if your employer is very small and has fewer than 15 employees? Many cities and counties in Florida, such as St. Petersburg and Pinellas County, have their own anti-discrimination ordinances. It is common for these local ordinances to apply to employers with 5 or more employees, or perhaps even fewer than that. An expert employment attorney in your area with experience in this field will know what special local laws may apply to you and how to leverage them.
What If I Was Injured on the Job?
If you’re injured on the job, you may be entitled to worker’s compensation. Although Florida Workers’ Compensation law does not necessarily require that the employer grant medical leave, they should tread carefully before terminating you after a workplace injury and claim for workers’ compensation. Specifically, Florida Statute section 440.205 prohibits employers from terminating your employment because you made a claim for workers’ compensation. The line between firing an employee for making a work comp claim and firing them for being unable to return to work due to an injury can be blurry, and so it is best to consult with a competent employment lawyer early on to understand your rights and generate a strategy for dealing with the employer.