The Family and Medical Leave Act of 1993 (FMLA) requires employers to provide eligible employees unpaid leave under certain circumstances. Although the law is complicated, it provides essential benefits to employees in difficult situations. If you think that your FMLA leave rights may have been violated, contact an attorney immediately.
Employees Protected by the FMLA
The FMLA generally only applies to employers with 50 or more employers in 20 or more workweeks in the current or proceeding year. Local, state, and federal government agencies are subject to the FMLA, regardless of the number of employees. Due to this limitation, only around 10% of companies are subject to the FMLA, which employ approximately half of the country’s work-force.
Not only must the employer be covered, but the employee must be eligible for FMLA leave. In order to be eligible, the employee must:
- work for a covered employer for a minimum of 12 months;
- work a minimum of 1,250 hours of service during the 12 month period preceding the leave; and
- work at a location where the employers has a least 50 employees within 75 miles.
Taking FMLA Leave
If the employee works for a covered employer and is eligible, he or she is entitled to leave under limited circumstances. The most common need for FMLA leave is when the employee has a serious health condition that makes him or her unable to perform the essential job duties of the job. Eligible employees can also take leave for other reasons, such as for the birth of a son or daughter or to care for a spouse, son, daughter, or parent who has a serious health condition.
The employee is entitled to 26 workweeks of leave within a 12-month period for the above reasons. 29 U.S.C. § 2612(a)(1)(D). Further, the employee may be eligible to take FMLA intermittent leave, allowing the employee to continue to work while take leave throughout the week due to qualifying reason. Keep in mind the FMLA only provides unpaid leave for qualifying employees, although other state or local laws may provide for paid leave. For example, Cook County and Chicago require paid sick leave for qualifying employees within the jurisdictions.
As a general matter, the employee should inform the employer within 30 days of taking the covered leave. If the employee learns the reason for a leave within 30 days, he or she only must provide notice as soon as practicable under the circumstances.
An employee does not need to expressly cite the FMLA to be entitled to leave. For example, an employee telling a supervisor that her son has surgery in two months and wants to care for him would be enough to trigger FMLA leave entitlement.
Potential Claims Under the FMLA
There are two common claims against employers for violating the FMLA. The first is a claim for FMLA interference. 29 U.S.C. § 2615(a)(1). An employer cannot interfere with, restrain, or deny the exercise or attempt to exercise, any right provided by the FMLA. Thus, if an eligible employee requested FMLA for a qualifying reason and the company simply denied the leave request, the company has committed FMLA interference.
The second FMLA claim is for retaliation. 29 U.S.C. § 2615(a)(2). A company is prohibited from terminating or discriminating against an individual for opposing any practice made unlawful under the FMLA. In other words, if an employer is upset that an employee requested FMLA, and terminates, demotes, or punishes the employee for any other reasons because of the leave request, the company has committed FMLA retaliation.
Other Causes of Action Related to Employee Leave
If the FMLA does not apply, there are other laws which may protect an employee taking leave. For example, an employee may be entitled to a short-term leave to accommodate a disability under the Americans with Disabilities Act (ADA). State and local laws may also provide further leave requirements than the FMLA.
If you believe your employer did not provide required FMLA benefits, contact an employment attorney as soon as possible.