Family and Medical Leave Act

Everyone has to find a way to balance their work responsibilities and their duties as family members. If you need time off to care for a sick loved one, the last thing you need to worry about is whether your job will be waiting for you when you come back. If you have recently had a baby or adopted a child, you should not have to add employment-related worries to the adjustment of adding a new family member. The Family and Medical Leave Act of 1993 (“FMLA”) is a federal law that requires particular employers to provide leave while protecting their jobs for certain family and medical situations.

The FMLA focuses on allowing an employee to take leave for the following issues:

An individual can take twelve (12) workweeks of leave in a twelve (12) month period for:

• the birth of or to care for a child within one year of birth;
• a serious health condition that makes an employee unavailable to perform the essential functions of their job;
• to care for an employee’s spouse, child, or parent who has a serious health condition;
• the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; or
• any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

As an alternative to the above, an individual can take twenty-six (26) workweeks during a single twelve (12) month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

A covered individual is entitled to unpaid leave under the FMLA for any of the above qualifying situations. During this leave, the covered individual’s employer must maintain the employee’s health benefits and other employment-related benefits. Upon returning to work, and individual taking leave under the FMLA is entitled to reinstatement to their previous position or an equivalent position by the employer.

A covered individual with a qualifying situation is not required to take any or all of the leave they are entitled to under the FMLA at one time. FMLA benefits allow an employee to take intermittent leave of any duration, so long as the total FMLA leave taken does not amount to more than twelve (12) weeks in one twelve (12) month period.

The FMLA can be very forgiving, but only if you qualify. It is a “cliff vesting” system, which means that you do not get any benefits until you qualify. Once you qualify, you receive all of the protections and benefits afforded to you by the FMLA.

Here are some of the important facts:

• To receive FMLA benefits, you must have been with your employer for at least twelve months; and
• You must have worked at least 1,250 hours within those 12 months; and
• Your employer must have at least 50 employees within a 75 mile radius of your job site (these employees can include part-time employees and those on leave).

An employee covered by the FMLA must be given access to the FMLA rights he or she has earned. Employers cannot interfere with or discriminate against an employee attempting to assert his or her rights under the FMLA. An employer may not consider an employee’s use of FMLA leave as a negative factor in employment actions including hiring, promotions, and disciplinary actions.

An employer may not refuse to authorize FMLA leave for a covered individual, discourage an employee from taking FMLA leave, or fail to restore an employee to the same or equivalent position once that employee returns from leave. An employer may not manipulate certain factors to avoid responsibility under the FMLA, such as reducing an employee’s hours so they do not qualify for benefits under the statute. Such actions constitute FMLA interference.

These cases are frequently very difficult and fraught with emotion. It is sometimes hard to tell if an employer is retaliating against an employee who has been on leave or if that employer simply does not have work for that employee when he or she returns from leave for a legitimate business reason.

An individual who believes their FMLA rights have been restrained or denied, or that they have been discriminated or retaliated against for exercising their right to FMLA leave, may pursue a private action against a covered employer. An FMLA lawsuit must generally be brought within two (2) years from the date of the last event constituting the alleged FMLA violation, although this period may be extended to three (3) years if the employer’s violation was willful.

An employee whose FMLA rights have been violated may be entitled to lost wages and employment benefits, liquidated damages, or other relief, including employment, reinstatement, or promotion. An employee who prevails with his or her FMLA claim may also be entitled to reasonable attorneys’ fees and the costs of the action.

Our lawyers can help you determine if your FMLA rights have been interfered with, restrained, or denied, or if you have been unfairly terminated or demoted because you had to take leave to address a family medical issue. We can assist you in taking appropriate action if a violation of the FMLA occurred.

Our home page features a section titled “How Can We Help?” If you believe you have an issue related to leave under the FMLA, please visit the page for employees and fill out our intake form. This form will provide the information needed by attorneys at The Erlich Law Office to determine how they may be of assistance.

Click here to learn about Family and Medical Leave Act in Washington, D.C.