As an employment lawyer in Charleston, South Carolina, I’ve helped people who’ve lost their job for missing time from work for medical leave. Employers in South Carolina are subject to the federal Family and Medical Leave Act (FMLA) that allows eligible employees to take unpaid leave, with the right to be reinstated to their job, for certain reasons. This article explains which employers and employees are subject to the FMLA, an employee’s right to medical leave, how much medical leave is allowed, the medical conditions that qualify under the FMLA, how to request medical leave, how to make a claim for violation of the FMLA, and the types of damages an employee may recover in a lawsuit for an employer’s violation of the FMLA.
Which South Carolina Employers Are Subject to the FMLA in South Carolina?
South Carolina employers must comply with the FMLA if they employ 50 or more employees in 20 or more work weeks in the current or proceeding calendar year. The FMLA also applies to all public employers in South Carolina and all private elementary and secondary schools.
Which Employees Are Subject to the FMLA in South Carolina?
In South Carolina, employees qualify for FMLA protections if:
- They worked for the company for at least a year during which they worked at least 1,250 hours; and
- They work at a location with at least 50 employees within a 75-mile radius.
What Happens to an Employee’s Job During Medical Leave?
The FMLA allows unpaid leave to an employee for who has a serious health condition or to care for a family member. Employees are entitled to continue their health insurance while on leave at the same cost they paid while working. An employer may require an employee to use their accrued paid leave during FMLA leave. When an employee’s FMLA leave ends, the employee is entitled to be reinstated to the same or an equivalent position with a few exceptions.
How Much Medical Leave Can a South Carolina Employee Take?
If they qualify under the FMLA, employees in South Carolina may take up to 12 weeks of leave in any 12-month period. This period renews every 12 months.
If the employee is caring for a family member who was injured during active military duty, then the employee may take up to 26 weeks of leave in a single 12-month period. This leave is per-injury and per-service member. Unless the same family member is injured again, or another family member suffers an injury while on active duty, an employee can’t take an additional leave for this purpose.
What are the Medical Conditions that Qualify Under the FMLA?
FMLA leave is available if a South Carolina employee needs time off to:
- Bond with a newborn child;
- Recuperate from a serious health condition;
- Care for a family member with a serious health condition;
- Handle qualifying exigencies arising out of a family member’s military service; or
- Care for a family member who suffered a serious injury during active duty in the military.
To take FMLA leave for a “serious health condition,” an employee must show that they or their family member has an illness, injury, impairment or physical or mental condition that results in an inability to work, attend school or perform other regular daily activities for more than three consecutive, full calendar days and:
- Requires inpatient care such as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity; or
- Involves continuing treatment such as tests to determine if a health condition exists, to evaluate a condition, or treatment with a course of prescription (not over-the-counter) medication or therapy requiring special equipment.
Serious medical conditions DON’T include the common cold, the flu, an upset stomach, non-migraine headaches, routine dental or orthodontic problems, or routine physical, optical, and dental exams.
How Do You Request Medical Leave in South Carolina?
An employee isn’t required to do anything “formal” to take medical leave under the FMLA. An employee only needs to notify his or her employer that they need time off for the medical reasons. Stated another way, the employee only has to give the employer “sufficient information” to put an employer on notice of potential FMLA-qualifying leave.
After the employee makes a request, it’s then the employer’s responsibility to notify the employee of the following 3 things under the FMLA within 5 business days from the time the employee makes a request:
- Eligibility Notice (verbal or written): The employer must state whether the employee is eligible to take FMLA leave or at least one reason why not;
- Designation Notice (written): The employer must notify the employee whether the employee’s leave will be counted against the employee’s entitlement to FMLA leave; and
- Rights & Responsibilities Notice (written): This notice must detail the employee’s right to the maintenance of benefits during FMLA leave and the restoration to the same or equivalent job upon the employee’s return. Also, the employer must describe the employee’s obligations regarding medical leave and describe the consequences if the employee fails to meet these obligations. For example, the employer may require the employee to provide a “Medical Certification” to take leave or a “Fitness-for-Duty Certification” (FFDC) when the employee returns:
- Medical Certification: An employer has the right to request a Medical Certification. This certification is completed by the treating physician and should describe sufficient medical facts to establish the existence of a serious health condition. The employer may request a a second or third opinion for initial certification purposes and can request a re-certification at a later date.
- Fitness-For-Duty Certification: A FFDC must be signed by the employee’s physician and certify that the employee is capable of returning to work. An employer may also require that the certification specifically state whether the employee has the ability to perform essential job functions. An employer may contact the employee’s physician for authentication or clarification of the FFDC, but the employer can’t delay the employee’s return to work while the employer is trying to contact the physician.
May an Employer “Check Up” on an Employee During Medical Leave?
Employers can’t harass an employee by calling too often to “check up” on them during medical leave. Under the FMLA, an employer may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work. Generally speaking, this contact should be non-arbitrary and reasonable under the circumstances.
What Happens When an Employee is Ready to Return to Work After Medical Leave?
South Carolina employers are required to restore eligible employees to the same or equivalent position with equivalent pay, benefits, and working conditions upon their return from leave.
If the employer designates an employee as a “key employee” in their Rights & Responsibilities Notice, then the employer may not have to reinstate the employee to the same or similar position upon their return from leave. A “key employee” is an FMLA-eligible worker who is salaried and is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed. The employer may fill the key employee’s position during their absence to avoid “substantial and grievous economic injury” to the company.
What Happens if an Employer Denies, Interferes with, or Retaliates Against an Employee for Taking Medical Leave?
If an employer denies, interferes with, or retaliates against an employee who takes medical leave, then the employer may be subject to a claim for damages by the employee.
To show that an employer denied or interfered with rights under the FMLA, an employee must show:
- He or she was an eligible employee under the FMLA;
- The employer was subject to the FMLA as described above;
- The employee was entitled to the FMLA leave;
- The employee gave notice to the employer of the employee’s intention to take leave; and
- The employer denied the employee a benefit to which he or she was entitled under the FMLA such as time off.
To show that an employer retaliated against an employee for taking medical leave, the employee must prove:
- He or she engaged in statutorily protected conduct;
- He or she suffered an adverse employment action; and
- There is a causal connection between the two.
Adverse actions against an employee include demotion, termination, failing to promote, reassignment with significantly different responsibilities, or benefits reduction. If the employee proves that the employer retaliated against an employee who took medical leave, then the employer must then demonstrate a legitimate and lawful reason for the adverse employment action regardless of the employee’s FMLA status.
How Does an Employee Make a Claim for Violation of the FMLA in South Carolina?
An employee who believes that their employer violated the FMLA has the choice of:
- Filing a complaint with the Secretary of Labor; or
- Filing a private lawsuit.
To file with the Secretary of Labor, the complaint may be filed in person, by mail or by telephone with the Wage and Hour Division, U.S. Department of Labor. The complaint should be filed within a reasonable time of when the employee discovers that the employer violated his or her FMLA rights.
An employee also has the right to file a private lawsuit under the FMLA. Generally, the employee must file the lawsuit within two years after the last action that the employee believes violated the FMLA or three years if the violation was willful.
What Types of Damages Can an Employee Recover for Violation of the FMLA in South Carolina?
Unlike other types of discrimination claims, there’s no requirement that
an employee fulfill any administrative prerequisites (such as making a claim through the EEOC) before filing a lawsuit for violation of the FMLA. If an employee chooses to bring a private lawsuit against his or her employer for violation of the FMLA, then the employee may be entitled to the amount of wages, salary, employment benefits, or other compensation denied or lost because of the violation; OR
- Any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to twelve (12) weeks of wages or salary for the employee, in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee;
- Interest on damages;
- Equitable relief such as employment, reinstatement or promotion; and
- Reasonable attorney fees and costs of the lawsuit.
An employee can’t recover damages for emotional distress or punitive damages under the FMLA.
Charleston Employment Lawyer for FMLA Violations
If you believe that your employer has violated your rights under the FMLA, then please contact us to schedule a free, confidential, meeting. We’ll cover all of your rights and remedies under the FMLA and precisely what we can do to help protect you and your job.