Family and Medical Leave

The Family and Medical Leave Act (FMLA) provides employees with certain job protections when they take medical leave for themselves, the birth of a baby or medical leave to care for a family member with a serious medical condition. The FMLA allows qualified employees of qualified employers to take up to 12 weeks of time off from work during a specified 12-month period if the employee has a serious health condition that makes the employee unable to perform the functions of the position of such employee or when a close family member has a serious health condition. This time may be taken all at once or taken as intermittent leave (as needed basis). The Family and Medical Leave Act is a complex law. It is important to note that FMLA leave is unpaid leave. The law does not require an employer to pay an employee who is out of work, however, the FMLA provides than an employer hold open an employee’s job for the period of FMLA leave. An employer may require an employee to use vacation time or sick time concurrently with FMLA leave. This means that while upon return from qualified leave, the employee is entitled to be reinstated to his former position or an alternate one with equivalent pay, benefits and working conditions, vacation and/or sick time may be exhausted.

Qualified Employers

The FMLA applies to companies that have more than 50 employees within 75 miles of each other. If the employer has less than 50 employees, the employee is not entitled to FMLA leave.

Qualified Employees

Just because an employer is large enough does not alone mean that the employee automatically qualifies for FMLA leave; FMLA leave must first be earned through service time with the employer. Thus, an employee must have worked for the employer for at least 12 months and must have worked at least 1250 hours within the prior 12 months prior to taking FMLA leave.

Medical Certification

FMLA leave is limited to serious health conditions. It cannot be taken as normal sick days. As a result, an employer can (and usually will) require an employee to provide a certification from a doctor stating that medical leave is needed for a serious health condition.

Serious Health Condition

The FMLA defines the term "serious health condition" as an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility or continuing treatment by a health care provider.

Intermittent FMLA Leave

An employee who suffers from a chronic condition may take intermittent FMLA on a pre-approved as needed basis, such as where there is a flare-up of a medical condition. An employer will require medical certification prior to the approval of intermittent FMLA leave.

There are two possible a FMLA claims an employee whose FMLA rights are violated may assert; FMLA Interference and FMLA retaliation.

FMLA Interference

FMLA Interference occurs when the employer fails to provide the employee with the legal rights guaranteed by the FMLA. To prevail on an interference claim, an employee must show (1) that the employee was entitled to benefits under the FMLA and (2) that the employer denied those benefits. One of the requirements subject to FMLA interference protection is to be restored to employment upon return from FMLA leave. To prevail on a failure-to-reinstate claim, an employee must show (1) that the employee was not returned to the former or an equivalent job upon returning from leave and (2) that the employee could perform the essential functions of the job. To show the ability to be restored to the same or similar job the employee must have been able to perform the essential functions of the job without accommodation. Thus, an employer may require the employee to present a fitness-for-duty certification to be restored to employment and may delay restoration to employment until the employee submits a required fitness-for-duty certification. There are specific notice requirements and procedures which an employer must follow and the failure to follow these requirements may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights.

FMLA Retaliation

FMLA Retaliation occurs when the employer retaliates against an employee for having exercised, or attempted to exercise FMLA rights. In order to analyze FMLA retaliation claim courts use what is known as the McDonnell Douglas burden shifting test. First, an employee plaintiff must establish what the law calls a prima facie of retaliation by showing that (1) the employee took an FMLA leave, (2) the employee suffered an adverse employment decision, and (3) the adverse decision against an employee was causally related to the FMLA leave. Amongst the factors that are relevant in determining whether a causal connection exists between the FMLA leave and the adverse employment action are timing (temporal proximity) and evidence of ongoing antagonism. Once the employee plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action (a reason for the action which has nothing to do with the employee taking FMLA leave). When the employer meets this burden, the employee must then prove by a preponderance of the evidence that the employer’s proffered reason was a pretext (i.e. a cover up) and not the true reason. To show pretext, the employee must present some evidence which could allow a judge or jury to disbelieve the employer's reason or believe that retaliation for exercising the employee’s FMLA rights was more likely than not a motivating or determinative cause of the employer's action.

We have handled numerous FMLA cases and can help you pursue your FMLA claims. If you are being denied FMLA leave, or your employment is terminated while on approved FMLA leave, or after your return from FMLA leave call us today at 267-470-4742 or contact us online to discuss your legal options.

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