Family and Medical Leave Act

Family and Medical Leave Violations

What is the Family and Medical Leave Act?

The Family and Medical Leave Act (“FMLA”) entitles eligible employees to take a protected leave of absence for serious health conditions to care for themselves or a close family member.

Who is eligible for FMLA leave?

• Employees are entitled to FMLA leave if the following requirements are met: The employee works for an employer who employs 50 or more employees within 75 miles of the worksite for at least 20 workweeks in the current or previous year; and
• The employee has worked for the employer for at least 12 months (does not have to be consecutive) and worked at least 1,250 hours in 12 months.

What qualifies for FMLA leave?

If you are an eligible employee and work for a covered employer, you should know that you cannot take FMLA leave for just any family medical emergency.  You are only entitled to leave (consecutive or periodic) in three situations:

1. For the birth of a child, to care for a newborn, or to bond with a newly placed adopted or fostered child;
2. To seek treatment for your own serious health condition or to care for a close family member (spouse, minor son or daughter or parent) with a serious health condition or a son or daughter over the age of 18 incapable of self-care because of a physical or mental disability; or
3. In some circumstances related to military deployments, or to care for a service member.

How much FMLA leave are you entitled to?

The FMLA allows you to take up to 12 weeks of unpaid leave in a given 12-month period. The leave may be taken over time, in increments of just a few days, or even a few hours, as needed. However, there may be limitations to your right to take leave intermittently if the purpose of your leave is to care for a new child.

If the leave is for military related reasons, the FMLA affords employees up to 26 weeks in a 12-month period for leave to care for a family member who was injured or became ill while on military duty.

Is FMLA leave paid?

Generally, no.  Employers are not required to pay you for time off under the FMLA.  However, you may be able to use—or even be required by your employer to use—your available vacation and sick days while out on FMLA leave.

How do employees apply for FMLA leave?

There are certain notice and medical certification requirements you may need to comply with to be entitled to FMLA leave. For example, if your leave is foreseeable, such as a planned non-emergency surgery, you must give your employer 30-days’ advance notice of your need for leave. If it is not foreseeable, you need to notify your employer as soon as possible, usually on the same or next day of your leave, if practicable.

Does a physician need to confirm the need for FMLA leave?

Yes.  Your employer can require you to submit medical certification from your treating health care provider verifying that you have a serious health condition. In certain circumstances, your employer may request a second or third opinion, but at their expense. Once your FMLA is approved, you may also be required to give periodic updates to your employer and/or recertify your need for leave.

Can I continue my health insurance while on FMLA leave?

While out on FMLA, you are entitled to continue your health insurance, although your employer may require you to pay your share of the premium.

Am I entitled to my job back when my FMLA leave ends?

Yes.  Perhaps the best part of the FMLA is that it offers job protection. Upon your return from leave, your employer must reinstate you to the same or an equivalent position at the same rate of pay and benefits. The FMLA is not without exceptions to this rule of course, so seek out an employment attorney to see if the exceptions might apply to you.

Am I protected from retaliation?

Yes. The FMLA prohibits an employer from retaliating against you because you took leave or attempted to take leave under the FMLA. It is also a violation of the FMLA for an employer to interfere with your right to take FMLA leave.

What are my damages if my employer violates the FMLA?

If an employer violates the FMLA, a prevailing employee can recover the following damages:

• Back pay and benefits as a result of the violation;
• An additional amount equal to your back pay and benefits (these are often called “liquidated damages”);
• Reinstatement (if terminated) and front pay; and
• Reasonable attorneys’ fees and costs.

Importantly, you are not entitled to emotional damages for violations of the FMLA.

How long do I have to file an FMLA lawsuit?

The FMLA requires you to file a lawsuit for an FMLA violation within two years (or three years if the violation is willful).  If you believe your employer violated the FMLA, you may be entitled to damages.  Consult with an employment attorney to evaluate your case and to explore all remedies available to you.

We are proven litigators and passionately seek justice for employees whose rights under the FMLA have been violated.