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Family and Medical Leave

Since the enactment of the The Family and Medical Leave Act (“FMLA”), a significant amount of my practice has been devoted to representing employees who are eligible for FMLA.  The FMLA is a complicated law and many employees are not even aware that they are eligible for FMLA coverage.   Moreover, many employers do not recognize the the extent of their obligations to employees who are eligible for FMLA leave. Privacy and confidentiality provisions in settlement agreements prohibit me from identifying cases, named parties, and the existence and terms of settlement agreements. However, if you or an immediate family member is suffering from a serious health condition, I can help you understand your rights.  Likewise, if you have been denied FMLA leave, I may be able to help you.  If you were fired for taking approved FMLA leave, fired while on approved FMLA leave or retaliated against immediately upon your return from FMLA leave, I can help you pursue your claims again the employer.

The FMLA is a federal law that allows eligible employees to take up to 12 weeks of unpaid leave from work in any 12-month period to care for themselves or family members. The FMLA only applies to private employers that have at least 50 employees within 75 miles of each other and to most federal, state and local government agencies, regardless of size.

The FMLA requires that an employee have worked for the eligible employer for at least 12 months and must have worked at least 1250 hours within the prior 12 months prior to taking the leave.  The FMLA is also limited to “serious health conditions”.  An eligible employee may take FMLA under the following circumstances:

  • A serious health condition that makes the employee unable to work;
  • A serious health condition effecting an employee’s spouse,  non-adult child or parent;
  • To care for the employee’s newborn child or a newly placed adopted or foster child.

Under the FMLA, an employer may require you to use vacation time or sick leave concurrently with FMLA leave.  Additionally, the FMLA requires that, if foreseeable, the employee give the employer 30 days notice of the need for FMLA leave.  If the need is not foreseeable, the employee must give notice of the need for FMLA leave as soon as practicable.   Since the FMLA is limited to serious health conditions, the employee is obligated to provide sufficient information for the employer to understand that the requested  leave qualifies under the FMLA.  Therefore, it is not sufficient to merely call in sick.  The employer may also require the employee to complete a medical certification.  However, the employer may not request medical records or directly contact the employee’s health care provider for more information.

The FMLA provides for leave on a full-time, part-time or intermittent basis.  With few exceptions, the FMLA requires that upon return to work, the employer restore the employee to the same or an equivalent position, the right to continued health benefits during leave, and the right not to be discriminated or retaliated against for taking leave.