Frequently Asked Employment Law Questions - Family and Medical Leave Act

The Family and Medical Leave Act is a federal law that provides eligible employees with the right to take up to 12 weeks of unpaid, job protected leave of absence for the following reasons: (1) for a serious health condition that makes the employee unable to perform his or her job; (2) to care for the employee’s spouse, child, or parent who has a serious health condition; (3) to care for the employee’s child after birth, or to place the child up for adoption or foster care; and (4) for incapacity due to pregnancy, prenatal medical care or child birth.  The FMLA also provides for family military leave for eligible employees who have a spouse, son, daughter or parent on covered active military duty, in order to address certain qualifying exigencies.

An employee is eligible for FMLA leave if he or she worked for a covered employer for at least 12 months, had at least 1,250 hours of service in the previous 12 months, and if at least 50 employees are employed by the employer within 75 miles.

Under the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a health care facility, or continuing treatment from a heath care provider, where the condition either prevents the employee from performing his or her job functions, or prevents the qualified family member from participating in school or other daily activities.

Under the FMLA, an employer is required to restore most employees to their original position or an equivalent position with equivalent pay, benefits and other terms of employment.  In addition, during an employee’s FMLA leave period, an employer is required to maintain the employee’s health insurance coverage under any group health plan on the same terms as if the employee had continued to work.  FMLA leave cannot result in the loss of an employment benefit that accrued prior to the start of the leave.

An employee does not have to take his or her FMLA leave in one block.  An employee may take his or her FMLA leave intermittently or on a reduced leave schedule when medically necessary.

Under the FMLA, an employee is required to provide the employer with at least 30 days advance notice of the need to take FMLA leave when the need is foreseeable.  If it is not possible to provide 30 days’ notice, the employee must provide notice as soon as practicable and generally must comply with the employer’s call-in procedures.  In addition, the employee must provide the employer with sufficient information for the employer to determine whether the requested leave qualifies for FMLA protection, and the anticipated timing and duration of the leave.  Employees may be required to furnish the employer with medical certification of the need for the FMLA leave, and periodic re-certification.

Covered employers are required to inform the employee who is requesting FMLA leave whether he or she is eligible under the FMLA.  If the employee is eligible, the employer must inform the employee of his or her rights and responsibilities.  If the employee is not eligible, the employer is required to provide the employee with a reason for the ineligibility.  In addition, covered employers are required to inform the employee whether the leave will be designated as FMLA-protected leave, and the amount of leave counted against their FMLA entitlement.  If an employer determines that a leave is not FMLA-protected, the employer must notify the employee.

Under the FMLA, employers are prohibited from discharging or discriminating against an employee in retaliation for opposing any practice made unlawful under the FMLA, or for any involvement in a proceeding under or relating to the FMLA.  Employers are also prohibited from interfering with, restraining, or denying an employee’s exercise of his or her FMLA rights.  It is unlawful for an employer to terminate an employee in retaliation for taking FMLA leave or attempting to exercise his or her FMLA rights.

FMLA Interference Claims

In order to establish a claim for FMLA interference, an employee must prove that: (1) he or she is an eligible employee; (2) the employer is a covered employer; (3) he or she was entitled to take FMLA leave; (4) notice of the employee’s intention to take the FMLA leave was given to the employer; and (5) the employee was denied a benefit to which he or she was entitled under the FMLA.

FMLA Retaliation Claims

In order to establish a claim for FMLA retaliation, an employee must prove that: (1) he or she engaged in statutorily protected activity; (2) adverse job action was taken against him or her; and (3) there is a causal connection between the activity and the adverse job action.

In a lawsuit for FMLA retaliation or interference, an employee may seek lost wages, salary, employment benefits, and other lost compensation, liquidated “double” damages, attorneys’ fees and litigation costs, as well as reinstatement of employment.