Family Medical Leave Act (FMLA) Claims

The Family and Medical Leave Act (FMLA) was designed to allow employees to take unpaid time off from work if they have a family or medical situation such as the birth of a new baby, caring for a sick spouse, or recovery from a medical procedure. FMLA does not require that employers provide paid leave to their employees, though some employers choose to offer limited paid leave. Your medical insurance and other benefits are protected.

FMLA Criteria

FMLA is designed to accommodate the interests of employers while helping employees balance work and family responsibilities. FMLA only takes effect if you meet specific criteria and work for a qualifying employer. FMLA exists in all public agencies, including government employers at federal, state, and local levels. Local agencies, such as schools and care providers, are also covered.
In the private sector, an employer must have at least fifty employees to have FMLA apply. Subsidiaries and aggregate companies that have a total of fifty employees during at least 20 weeks of the current or previous year and those employees work within 75 miles are bound by FMLA as well.
As an employee, you must have worked at least 1,240 hours during the twelve months before taking the leave. You must have worked for the employer for at least one year prior to taking leave, but the year does not have to be consecutive. In a typical scenario, any time within the past seven years that you worked for your employer will be counted for FMLA purposes. The break could extend beyond seven years if part of the time away from work were due to active military service or the result of a collective bargaining agreement.

The unpaid 12 weeks of leave are to be provided for any of the following qualifying reasons:

• The birth and care of a newborn child (Dads can take FMLA to leave as well)
• Pregnancy complications
• The placement of an adoptive or foster child with the employee
• To care for an immediate family member with a serious health condition
• Medical leave for an employee that is unable to work because of a medical condition
• For qualifying exigencies arising out of the active duty or call to active duty status of a spouse, son, daughter, or parent

How Does the Family Medical Leave Act Work?

Qualifying employees can take up to 12 weeks off under FMLA rules. The time may be consecutively or spread throughout the year. FMLA permits intermittent leave, meaning you can continue to work a reduced schedule, or you can take intermittent time off. For instance, if you have medical treatments once a week that require you to take the day off, you can use your FMLA time in that manner.

Your employer can require you to make a reasonable effort to schedule treatment in a way that does not unduly disrupt their operations. Employers can also make the decision to transfer an employee to an alternative job. However, if you are placed in an alternative job, the new position must offer the same pay and benefits.

How to File for FMLA

FMLA holds that employers are entitled to appropriate notice. If you have advance notice, such as a scheduled surgery or if you are pregnant, then you must give your employer thirty days of advance notice of your plan to utilize FMLA. If your need for leave arrives more suddenly, you are obligated to give your employer notice as soon as possible. You have to follow the usual notice or call in procedure unless you are unable to do so, such as when you are receiving emergency care after a car accident.

You have to provide your employer with enough information about your condition that your employer is aware it is covered by FMLA. If you fail to provide your employer with the appropriate information, your leave may not be protected by FMLA. Keep a copy of the information you provide to your employer and note the dates that you provide the information.

Ideally, you and your employer will engage in ongoing communication to ensure that the FMLA process runs as smoothly as possible. Both you and your employer have obligations to follow the guidelines set forth. You and your employer have a mutual responsibility to notify each other of when FMLA leave is being used, and you have an obligation to notify your employer of changes to your medical condition that will affect your need for FMLA.

Your employer can require that you provide periodic updates of your status and your date of return to work. An employer has five business days from your FMLA request to notify you of eligibility for FMLA. If the employer determines you are not eligible, they must provide you with at least one reason why you are being denied FMLA. When your employer gives you your eligibility determination, they must also give you notice of your rights and responsibilities under the Family and Medical Leave Act. The notice must include:

• A clear definition of the 12 months used to track your FMLA usage (each employer may measure the 12 months differently)
• Any requirement placed on you to provide medical certification from your health care provider
• Your rights to return to your job, pay, and benefits at the end of your FMLA leave
• Whether or not your employer will require you to use your paid leave before or concurrent with FMLA

When your employer requests medical certification, you have no more than 15 calendar days to provide the certification under most circumstances. Any costs for the certification rests with the employee and not the employer. It is crucial that you understand that failure to provide the requested medical certification can result in a denial of your FMLA. A medical certification must include:

• The contact information of the certifying health care provider
• The date the medical condition began
• The projected time that the condition is expected to last or the projected time that you will need FMLA
• Information about the condition that includes required treatment, hospitalization, or care visits
• Whether or not you are unable to work or the information that it is an immediate family member in need of care
• A specification of continuous or intermittent leave

If an employer deems that the certification is missing relevant information, they must notify you in writing of what additional information is needed, and it is your responsibility to have the additional information added to the certification. An employer who doubts the validity of your certification can request a second opinion, but costs associated with that second opinion will fall to the employer.

If the period of your leave changes significantly, your employer can require that you provide an updated certificate. The requirement must be presented to you in writing, and you must be given adequate time to provide the updated certificate.

What Happens if My FMLA Request is Denied

The Family and Medical Leave Act prohibits employers from placing undue hardship on a qualified employee requesting FMLA leave. Your employer cannot discriminate or retaliate against you for exercising your FMLA rights, nor can they engage in the following prohibited conduct:

• Discouraging an employee from utilizing FMLA
• Refusing to authorize legitimate FLMA leave for an eligible employee
• Use an FMLA request as a negative factor in determining employment actions such as promotions, hiring, or disciplinary actions
• Discriminate against an employee who lodges a complaint about unlawful FMLA practices

Under the Family and Medical Leave Act, an employee must be restored to their original or equivalent job. The U.S. Department of Labor manages and enforces FMLA regulations. If an employer interferes with or denies your rights under FMLA, you have the right to file a complaint with the Department of Labor.

The Department of Labor can take action such as levying fines or bringing a lawsuit against non-compliant employers. The law also allows for employees to bring a lawsuit on their own for FMLA violations.

It is important to remember that if you exhaust your FMLA leave to which you are entitled and are still unable to return to work, your employer is no longer required to protect your job. There are also special circumstances governing what FMLA covers for key employees and teachers. You can read about the special circumstances on the Department of Labor website.

What Damages Can I Recover if my Employer Violates the FMLA Act?

In an FMLA lawsuit, you can seek monetary damages caused by your employer’s violation of the Family and Medical Leave Act. Damages are intended to restore harm you suffered as a result of the employer’s non-compliance with the law. The FMLA authorizes courts to award damages of:

• Back pay—The court can order the employer to pay you the salary and benefits you would have received if the employer had complied with FMLA. For instance, if you were fired, the company can be ordered to pay you the equivalent of your salary and benefits you would have received. If you were demoted after using FMLA, the employer could be ordered to pay the difference in the actual money and benefits you received and what you would have received had you not been demoted.
• Out-of-pocket costs—Your employer can be ordered to reimburse you for the money you had to spend as a result of their illegal actions. An example would be having a spouse that is a teacher and could have provided care for you after surgery during the summer. Instead, your employer forced you to postpone your leave for surgery until the school year resumed. You were then forced to pay for a caregiver because of the unnecessary delay. The costs of the caregiver would be considered an out-of-pocket expense that you may recover under FMLA.
• Front pay—Front pay is reimbursement for the money you will lose in the future because of the actions of your employer. The court can order reinstatement, which means there will be no future losses, but if the court does not order reinstatement
• Liquidated damages—Liquidated damages should equal the total amount of back and front pay owed to you by your employer. Liquidated damages intent is to pay for harm for which it is hard to assign a specific dollar amount. FMLA does not allow for pain and suffering or emotional damages, but liquidated damages act in much the same way. To avoid paying liquidated damages, your employer will have the burden to prove that they acted in good faith even though they violated your rights.

Seek Legal Help if Your Employer is Not Complying with FMLA Guidelines

FMLA is a crucially important law designed for the protection of workers with medical problems or family issues. Unfortunately, not all employers obey the law or make it difficult for workers to take the time they need. Some employers discriminate or retaliate against employees who take FMLA.

If this has happened to you, you need the help of an experienced employment law attorney. Call the experienced legal team at the Lopez Law Firm for an immediate consultation if you have experienced problems in using FLMA.

See also:

• GENERAL FEDERAL FMLA CLAIMS FOR EMPLOYEES
• FLORIDA FMLA CLAIMS FOR EMPLOYEES