Under the federal Family and Medical Leave Act of 1993, eligible workers who are employed by covered employers have the right to take unpaid leave from their jobs in order to deal with serious health conditions. The FMLA gives workers the right to take up to 12 weeks of unpaid time off from work each year. The right applies if the serious health condition is that of the worker or of a qualified member of the worker’s family. Swartz Swidler can help people in New Jersey and Pennsylvania who need to take FMLA leave, including people who are working under H-1B visas.
What is an H-1B visa?
An H-1B visa is a work permit that allows highly skilled foreign nationals to live and work in the U.S. for three years. The three-year period can be extended up to six years. In most cases, H-1B applicants must have a minimum of a Bachelor’s degree or its equivalent. This type of visa does not give the worker a general right to employment. Instead, the visa is tied to a certain employer. If the employment relationship with that employer ends, the visa holder will need to leave the U.S. or find another job with a new H-1B visa. H-1B visas also allow visa holders to seek permanent residence in the U.S.
The FMLA and the H-1B visa
Holders of H-1B visas have the same FMLA rights as other workers in the U.S. This means that eligible H-1B visa holders must be given the same rights as other employees are given at the same company. For instance, if an employer normally pays workers who take time off for medical reasons, the employer must also pay the H-1B employee when he or she takes medical leave.
The H-1B visa program is designed to allow highly skilled foreign nationals to use their expertise to benefit the U.S. Because of this, the U.S. government does not look kindly on placing H-1B visa holders on unpaid leave without a good reason. Companies must ensure that the FMLA process that they use fully complies with all of the legal requirements.
Talk to the employment lawyers at Swartz Swidler
Companies that place pressure on H-1B workers to take FMLA leave as a means to avoid paying them may face stiff penalties. Similarly, companies that wrongfully deny FMLA requests from H-1B visa holders may also get into legal trouble. If your employer has been forced to take FMLA leave or has had your request for it denied, contact the employment lawyers at Swartz Swidler for a free consultation.
