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family & medical leave act claims

Employers are prohibited from denying legitimate requests for time off from work under the Family and Medical Leave Act (FMLA).  The FMLA guarantees eligible employees up to 12 weeks of job-protected, unpaid leave from covered employers during any 12-month period for any of the following reasons:

  1. birth and care of the employee’s child, or placement for adoption or foster care of a child with the employee;

  2. care of an immediate family member (spouse, child, parent) who has a serious health condition;

  3. care of the employee’s own serious health condition that makes the employee unable to perform the essential functions of his/her job; or

  4. any “qualifying exigency” arising out of the fact that an employee’s spouse, son, daughter, or parent is a military member on covered active duty or has been notified of an impending call or order to covered active duty.  (Examples of a “qualifying exigency” are (1) making alternative child care arrangements for a child of a deployed military member, (2) attending certain military ceremonies, or (3) making financial or legal arrangements to address the military member’s absence.)

Separate from a “qualifying exigency” leave, the recently adopted military caregiver provisions of the FMLA requires that covered employers grant eligible employees up to a total of 26 workweeks of unpaid, job-protected leave during a single 12-month period to care for a covered service member with a serious injury or illness.  The employee must be the spouse, child, parent or next of kin of the covered service member.

While an employee is on FMLA leave, the employer must maintain the employee’s health insurance benefits.  Employers, however, have no duty to pay for any portion of the FMLA. Depending on the terms of an employer’s paid leave policies, employees may be entitled to use their paid time off (e.g., vacation or paid sick days) during the course of their FMLA leaves.  In fact, many employers require that employees’ accrued paid time off run concurrently with some or all of the FMLA leave period.

Under some circumstances, employees may be able to take leave on an intermittent or reduced schedule basis.  Depending on the nature of an employee’s serious health condition, this means that an employee may take leave in separate blocks of time or by reducing the time he/she works each day or week.  Consequently, this type of leave may be appropriate if you have a serious health condition that “flares up” periodically on an inconsistent or unpredictable basis.

An employee who returns to work following a leave under the FMLA must be returned to the same or equivalent position in terms of pay, benefits, and other conditions of employment. Importantly, employers are prohibited from retaliating against employees who request or take time off under the FMLA.

There are coverage and eligibility requirements that both employers and employees must satisfy before the FMLA can be invoked.  Although the FMLA applies to all federal, state, and local government employers, it only applies to private employers that have at least 50 employees working within a 75-mile radius in 20 or more workweeks in the current or preceding calendar year.

To qualify for FMLA coverage, Employees must have worked for an employer covered by the FMLA for at least 12 months, including at least 1,250 hours of service during the 12 month period immediately prior to the start of the leave.  Therefore, new or probationary employees may not be eligible for FMLA coverage. However, it is important to note that the 12 months of employment do not have to be consecutive so that any time previously worked for the same employer (including seasonal work) could, in most cases, be used to meet the 12-month requirement. 

In addition, employees must also satisfy certain notification requirements under the FMLA.  Generally, employees must request the leave 30 days in advance when the need for the leave is foreseeable (e.g., surgery).  When the need for leave is not foreseeable (e.g., emergency), employees must provide notice as soon as possible under the circumstances.  When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee does not need to specifically assert FMLA rights or even mention the FMLA.  Courts have found a whole range of conduct to constitute sufficient notice to the employer for purposes of triggering its FMLA obligations.

Another notice obligation occurs when an employee requests FMLA leave due to his/her own serious health condition or a covered family member’s serious health condition.  In those circumstances, employers may require that employees produce certification of the condition from a health care provider.  An employer may also require second and third medical opinions (at the employer’s expense) and periodic recertification of the serious health condition.

These rules represent only the basics when it comes to determining whether an employer complied with the Family and Medical Leave Act.  The rules concerning FMLA leaves are much more complex than this primer would suggest.  For that reason, many employers are frequently out of compliance.  Whether you are currently or formerly employed by your employer, our attorneys can help you determine whether your rights have been violated and, where appropriate, can offer a realistic plan of action for seeking relief.


As indicated in our disclaimer, the representations contained herein and throughout this web site are for informational purposes only and should not be taken or relied upon as legal advice.

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