Family and Medical Leave

Illness happens. Life happens. Sometimes, an employee must take a leave of absence from work. If the employee is eligible for protection under the Family and Medical Leave Act, the employee may take up to 12 weeks off of work (unpaid) to deal with either the employee’s own serious health condition or a family member’s serious health condition. If the employee is helping care for an injured military member, the employee may be eligible for even more leave.

Unfortunately, employers often fail to comply with these leave provisions. Many employers don’t understand the FMLA and impose limits and restrictions on employee use of leave not allowed by the statute.

To be eligible for FMLA leave, an employee must have worked for the company for 12 months and worked over 1250 hours during that time.  And the employer must have 50 or more employees within a 75-mile radius of the worksite.

Sometimes, an employee is technically not eligible to take FMLA leave but the employer grants it anyway.  If the employer later tries to deny that the employee was not eligible for the FMLA leave, the law may prevent it from retroactively denying the previously approved FMLA leave.

When an employee seeks FMLA leave, the statute imposes strict requirements concerning when and how the employee seeks leave and the information that must be provided to the employer. It also imposes strict requirements concerning how quickly the employer must respond to a request for leave and the information the employer must provide to its employee while that employee is out on leave.

The employee’s job is supposed to be protected during approved FMLA leave and the employee should be returned to the same job or an equivalent job. If the employee is a “key employee,” the rules are slightly different.

Many people mistakenly believe that they cannot be fired while taking FMLA leave. But an employee can be terminated while on FMLA leave if the company has a legitimate and non-discriminatory reason for doing so.  Because firing an employee during FMLA leave is risky, companies often wait until the employee returns from leave to announce the termination.

Many mistakes occur during the FMLA leave process and can lead to legal claims.  If an employer refuses to provide required leave, or discourages the employee from taking it, this can create an FMLA interference claim.  Likewise, if an employee must perform some work duties while out on an approved FMLA leave, that may constitute FMLA interference.

Employees often are discriminated or retaliated against after taking FMLA leave.  This may give rise to an FMLA retaliation claim.

Mistakes also arise when an employee seeks intermittent leave. Intermittent leave is very difficult for employers to administer. Sometimes, employers discourage employees from taking intermittent leave even though they legally are entitled do so.

Confusion also arises from an employee’s use of FMLA leave and the employee’s simultaneous receipt of short-term disability benefits. Many people do not understand that short-term disability is separate from FMLA leave. Short-term disability is an insurance product that may pay an employee while that employee is out on a disability leave. But, short-term disability has nothing to do with an employee’s entitlement to FMLA leave.

Many companies outsource handling FMLA leave to third parties or short-term disability providers. This leads to many mistakes and employees often have claims against their companies for the mistakes that occur in this scenario.

If you have questions about your FMLA rights, contact the attorneys at Johnston Tobey Baruch for an evaluation of your claims by clicking the Tell Us About Your Case button and selecting the Employment Law option.


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