The Family and Medical Leave Act (FMLA) requires employers in certain circumstances to give employees up to 12 weeks of unpaid leave for reasons related to family and health. I can help employees file an FMLA claim against their employer, or help an employer defend a claim by an employee.
Which Employers Must Provide FMLA Leave?
FMLA applies to all public employers and private employers who have had 50 or more employees for at least 20 weeks during either this year or the prior year.
Which Employees Are Eligible?
An employee must meet the following requirements to qualify for FMLA:
- Work for the employer for at least 12 months;
- Work at least 1,250 hours during the 12 months prior to starting FMLA leave; and
- Work at a location where at least 50 employees are employed or within 75 miles of that location.
For What Reasons Is an Employee Entitled to FMLA Leave?
Employees are eligible for FMLA leave for the following reasons:
- The birth of a son or daughter, and to care for the newborn;
- The placement of a child for adoption or foster care, and to care for the child;
- Care for an immediate family member (spouse, child, parent) with a serious health condition; or
- A serious health condition that makes the employee unable to work.
How Much FMLA Leave Is Available?
Employers must allow eligible employees to have up to 12 weeks of unpaid leave during a 12 month period. In some cases, employees are allowed to take FMLA leave on an intermittent basis or work a reduced schedule.
Can an Employee Get Paid for FMLA Leave?
Employees can choose to use accrued paid leave as part of FMLA leave, or employers can require employees to use paid leave. Employees can also choose to substitute accrued paid vacation or personal leave, or employers can require the substitution. The use of sick leave or family leave depends on the employer’s policies.
How Does an Employer Violate the FMLA?
Covered employers must allow their employees to take FMLA leave when requested. After returning from FMLA leave, an employer must restore an employee to his or her original position, or to an “equivalent” position. An equivalent position is one that is virtually identical to the original job in regard to pay, benefits, and other terms and conditions. Employees also must retain any benefit they had previously earned or were entitled to before using FMLA leave.
An employer cannot retaliate against an employee for exercising his or her rights under the FMLA. For example, an employer cannot take any adverse employment action (fire, demote, etc.) against an employee for taking FMLA leave or for complaining about a violation of FMLA. Employers also may not interfere with an employee’s attempt to take FMLA leave by inhibiting the exercise of an employee’s rights under the FMLA.
What if an Employer Violates the FMLA?
Employees may either file a complaint with the Secretary of Labor or file a lawsuit against the employer. However, in general, a lawsuit must be filed within two years of the last event constituting the violation, or three years if the violation was “willful.” A violation is considered willful if the employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.”
What Relief Is Available under the FMLA?
An employee who proves an employer violated the FMLA can recover back pay (lost wages), front pay (lost future wages if getting the job back is not practical), attorney’s fees, and liquidated damages. Liquidated damages allow employees to get double their lost wages, unless the employer can show it acted in good faith and based on reasonable grounds to believe its act or omission was not a violation of the FMLA.
Contact me today if you need help with an FMLA claim.
Applicable statutes: 29 U.S.C. § 2601; 29 CFR 825.
