Family Medical Leave Act Violations

The Family and Medical Leave Act of 1993 (FMLA) protects the jobs of certain employees who wish to take time off from work in order to:

• treat or recover from their own serious medical condition;
• care for a seriously ill child, spouse, or parent (though not an in-law); or
• spend time with a newborn or newly adopted baby.

“Serious health conditions” are those which require in-care treatment at a medical facility, or ongoing treatment from a healthcare provider. As a general rule, if you are incapacitated for a period of three days or more, have sought medical treatment for the condition at least once, and are under an ongoing treatment regimen, the condition will qualify as serious under the FMLA.

Eligible employees may take a maximum of 12 weeks of protected, unpaid medical or family leave per year. The leave may be continuous or intermittent (i.e. brief leave time taken every so often, if medically necessary). The law stipulates that the employer must return the employee to his or her position, or to a position that is equivalent in pay, benefits, working conditions, and seniority, at the end of the leave.

Restrictions

Several important restrictions limit the coverage of employees under the FMLA. In order to qualify for a protected family or medical leave,

• Your employer must have 50 or more employees within a 75 mile radius of your job site (including part-time employees and those on leave);
• You must have been employed by your company for at least twelve months; and
• In those twelve months, you must have worked at least 1,250 hours for the employer. (For example, if you work at least 25 hours/week for 50 weeks).

Requesting a Leave

If you are qualified and wish to take a leave, the FMLA stipulates that you must notify the employer at least 30 days in advance if the need for leave is foreseeable (for example, if you have a surgery scheduled, or are pregnant and wish to take time off after giving birth), or that you notify them “as soon as practicable” (i.e. within one or two business days) where the need for leave is unforeseen.

You must also provide the employer with enough information for them to understand that the leave is needed for an FMLA-qualifying reason. The employer is permitted to require a doctor’s certification to confirm the need for leave. They may also require you to seek a third-party opinion at the employer’s expense, periodically recertify your leave, or provide periodic updates during your leave regarding your status and ability to return to work.

You may request to use accrued paid vacation or sick time as part of your FMLA-protected leave. In addition, the employer is permitted to require you to use this time as part of your leave.

You should have, but need not, used the magic words “I want family/medical leave”. If you told the correct person at your employer that you are sick or need to care for children or parents (as described above) your employer was on notice and should have offered the leave to you.

If you believe that your company has violated the Family/Medical Leave Act, it is important to contact a knowledgeable employment attorney as soon as possible, as there may be serious time limit issues to your case. The attorneys at Joseph & Kirschenbaum LLP are committed advocates of employee rights with years of experience handling FMLA claims. Contact us to discuss the details of your case.