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By stephen of Kristensen, LLP posted in Employment Law -- Employee on Monday, September 14, 2020.
Is it legal for employers to lay off employees that take time off to care for sick family members?

When a family member becomes ill, it’s a natural instinct to want to take the responsibility of their care into your own hands. In order to fully make that commitment, it’s important to be aware of how this will affect your career, particularly if it will require time away from work. That said, one major concern caregivers have is whether or not your employer can legally fire you for taking the needed time off. Navigating the legalities of this may be intimidating, and we’re here to help you understand your rights as a worker, while prioritizing the needs of your family.


First and foremost, it is important to learn if you are an eligible employee to take leave under the Family and Medical Leave Act (FMLA), as well as if your employer is covered. To be eligible, you would have needed to work for the employer for at least 12 months, as well as have over 1,250 hours of service during your 12-month employment, and the employer must have 50 additional employees within 75 miles. From there, if you are eligible, you are entitled to take up to 12 weeks of unpaid leave with comprehensive job protection, which is calculated within a designated 12-month period.


Regarding covered employers, they are required to allow you the time off under FMLA if you are an eligible employee. As previously stated, your employer must give you the 12 weeks of unpaid and, most importantly, job-protected leave. Currently, in regards to COVID, there are no federal laws covering non-government employees who must take off time to care for their healthy children if they are released from school. With that, employers are legally not required to allow your leave, but in the case of the pandemic, are encouraged to provide flexibility.


Once the 12-week leave period is complete and you are still not able to return to work, is it legal for your employer to fire you? Right now, it is uncertain. With the novel coronavirus changing everything, this is new and not previously navigated territory – however, your health comes first. It is suggested that you and your employer become as flexible as reasonably possible, and communicate on whether telework could be utilized within the context of your role, as well as explore other possible compromises.


If you are assuming the responsibility of taking care of a sick family member with a serious health condition, taking time off of work is difficult to avoid. If your employer is not being flexible, and not providing you with this 12-week leave period, or your child has been dismissed from school, and you believe taking the proper action for you and your family is threatening your employment, then please contact us. We will work with you to respond appropriately to the situation, while protecting your livelihood as you protect your family.