Your Workplace Rights When an Immediate Family Member Suffers a Traumatic Brain Injury

When a son, daughter, spouse or parent is being treated for a traumatic brain injury, you’ll almost certainly be taking time off from work to assist in your loved one’s care. Since a traumatic brain injury (TBI) may involve a prolonged period of hospitalization for medical stabilization, you may find yourself missing work for a lengthy period starting immediately after the occurrence of your relative’s injury. Additionally, as TBI has long-lasting consequences, you may continue to miss work sporadically during the upcoming months or even years.

The Family & Medical Leave Act (FMLA), a nationwide workplace rights law, permits employees to take leaves of absences to assist immediate family members who, while living at home or while being treated in hospitals, rehabilitation centers or other facilities, are unable to care for their own basic medical, hygienic, safety or nutritional needs. A workplace rights law, FMLA also requires certain employers to hold job positions open for employees who miss work when their presence would psychologically benefit an immediate family member who is confronted by a serious health condition. FMLA further permits family members to take leave from work to fill in for other caretakers, provide transportation to health-care providers, or to make arrangements for changes in care, such as transferring a close relative to or between residential rehabilitation facilities.

If both you and your employer are covered by FMLA, you may take up to 12 weeks leave from work every year. Fathers and mothers working for different employers may each utilize up to this amount of time annually.

You’re eligible for FMLA leave if you work for a private employer having 50 or more employees within 75 miles of your jobsite and you have:

• at least one year's job tenure with your employer (the tenure need not have accrued during consecutive months);
• been working for the employer for at least 1,250 hours in the prior year; and,
• an intent to return to work at the end of the leave period.

Certain employees based away from an employer’s facility also have FMLA rights. Most governmental employers must adhere to the FMLA.

Although employers aren't obligated to pay wages during leave, they must continue to provide the same levels of benefits during an FMLA absence. Employers normally paying health insurance premiums, fully or partly, may not change their funding during the leave period. Employers may deduct from FMLA leave remaining sick and vacation days. Some states, but not all, have FMLA-type laws of their own which provide rights in excess of those required by this federal law.

FMLA privileges offer legal protections for men and women who wish to care for immediate relatives with TBI. Physical injuries resulting from automobile accidents, falls or violence may also be sufficiently serious enough to invoke FMLA rights. Parents are eligible for FMLA, regardless of whether a son or daughter being cared for is an adult or minor child. Adult children may utilize FMLA to assist aging parents. A spouse can take time off from work to help care for a husband or wife.

Caregivers may take FMLA time in large chunks or can use it sporadically to attend regular appointments with physicians, mental health counselors, therapists or other health care professionals. Leave time may also be used for unplanned occasions, such as when a relative has a setback, whether permanent or temporary. Although FMLA requests are required to be made at least 30 days in advance, the law permits notice be given “as soon as practicable” when unforeseeable events arise.

In 2003, the U.S. Department of Labor investigated each of the 3,565 complaints received from people claiming their employers disregarded FMLA requirements. Investigators determined that employers failed to adhere to FMLA's rules in 46% of cases reviewed. The most common complaints were refusals to reinstate employees taking FMLA leave, interfering with the taking of leave and retaliating against persons returning from leave. Employees may file lawsuits alleging FMLA violations without first lodging complaints with the Department of Labor.

Employees who have been denied FMLA benefits may sue their employers for lost wages, benefits and the costs of providing care to ill relatives during the disputed time period. Judges award those workers who win their cases with double the value of the amount of their lost wages — except in cases where employers made mistakes in good faith — even when non-compliance was unintentional. If a new job pays less than the one which ended as a result of the FMLA violation, judges sometimes award additional money as compensation for ongoing wage losses. Employers are also liable for other expenses incurred when FMLA rights are violated. For example, a caregiver wrongly denied FMLA leave may need to hire private nurses to care for a loved one recuperating at home. The employer would be responsible for these added expenses. If illegally fired for taking FMLA leave, the caregiver may be unable to afford to pay for COBRA insurance. The employer would be liable for all medical bills, which would have been covered by the employee’s insurance policy. When prevailing at trial, employers usually must make payments to workers for attorney’s fees and certain litigation expenses. Jurors are often sympathetic to persons who were fired, refused promotions, demoted or otherwise discriminated against as a result of taking FMLA leave.

While on a leave of absence to care for a father with Alzheimer's disease and a mother who suffered a stroke and heart ailments, Chris Schultz expected compassion from his employer, but received a pink slip instead.

Mr. Schultz, who worked for 25 years in the maintenance department at Christ Hospital and Medical Center in the Chicago suburb of Oak Lawn, Illinois, had been the first non-physician his employer had honored as "MVP Employee" of the year. He received that commendation shortly after being named employee of the month. Mr. Schultz’s photograph was even displayed in the hospital lobby along with the MVP designation. Still, supervisors fired him, citing write-ups for not performing duties during approved leaves of absences while he assisted his ailing parents.

Mr. Schultz sued, alleging he had been terminated in violation of FMLA. In a 2002 trial, jurors determined Mr. Schultz's employer violated FMLA in bad faith, awarding him money equivalent to double his wage loss. When instructed that Illinois has its own FMLA-like state law which permits money compensation for emotional pain and suffering, jurors granted him an additional $11.5 million. The hospital later settled for an undisclosed amount of money.

• Taking time off from work on Tuesday and Thursday afternoons to attend physical therapy sessions.
• When returning to work after a six week absence, working one quarter days for a number of weeks, then resuming to half days for a period of time and finally, working three quarters of work days until returning to full time duty. The combined period of non-worked time must not exceed the equivalent of a 12-week leave period. Here, FMLA would allow an intermittent period of part-time work leading up to the resumption of full time work.

Obviously, FMLA privileges are particularly pertinent for persons with a mild or moderate brain injury who are able to return to the pre-injury position within twelve weeks. Employers are not required to hold work positions open for persons with severe brain injuries, who may require leave periods in excess of the 12 weeks permitted by FMLA.

Persons obtaining new employment after experiencing brain injuries also need to know about their FMLA rights. If working for an employer large enough to be obligated to adhere to FMLA requirements, FMLA rights would “kick-in” after working 1,250 hours and gaining 12 months seniority on the new job. Once becoming entitled to FMLA, employees have tremendous flexibility when setting their work schedules — so long as the total length of time away from the job does not exceed 12 weeks leave during a year’s time. For example, if needing to take sporadic time off work for medical care, physical therapy or psychiatric care, employees could be away from work for over nine hours a week for 52 consecutive weeks. This would permit, for example, taking four hours of afternoon leave on Tuesdays and Thursdays over the course of a year. Keep in mind that workers must give 30 days advance notice when needed leave is foreseeable. However, there is no need for advance notice when emergencies arise. Also, the length of advance notice is reduced when learning leave will be required in less than 30 days.

Caregiving family members, as well as survivors of brain injuries, are at high risk for employment discrimination. The impact of TBI extends out of the home and into the workplace. Knowing your FMLA rights can provide you with time off from work to deal with health care issues effecting you or family members, as well as provide you with legal recourse if your job rights are violated.

Loring N. Spolter, an employment law trial attorney in Fort Lauderdale, Florida, has lectured on the Family & Medical Leave Act for the American Bar Association, the National Employment Lawyers Association, and numerous other organizations. Previously, a prosecutor in the Brooklyn, New York, District Attorney’s Office, he began practicing employment law after developing Type-I/juvenile diabetes at 32 years of age.