FMLA RIGHTS
This page is for general informational purposes only and should not be considered legal advice. Your situation may not fit the claim you think it would, but it may fit another. Only an attorney with comprehensive knowledge of employment law can tell you whether you have a claim. You should always consult with an attorney before taking or refraining from taking any action in your individual situation.
YOUR FMLA RIGHTS
What are my rights under the Family Medical Leave Act (FMLA)?
The Family Medical Leave Acts gives eligible employees the following rights:
- Up to 12 work weeks of unpaid FMLA leave a year;
- Continuing health benefits while on FMLA leave; and
- The right to return to the same or equivalent job upon return from FMLA leave.
Does the Family Medical Leave Act apply to my employer?
The FMLA applies to all public employees and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding year.
Am I eligible for FMLA leave?
To be eligible for FMLA leave:
- The employer must be covered by the Family Medical Leave Act (FMLA);
- The employee must have worked for the employer for at least 12 months;
- The employee must have worked 1,250 hours within the past year prior to the start of FMLA leave; and
- The employee must work at a location where the employer has 50 or more employees within 75 miles.
Can I get paid while on FMLA leave?
Yes, the law permits an employee to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA period. The employee would receive pay according to the employer’s paid leave policy and the use of the paid leave time is credited against the employee’s 12 week annual entitlement. When paid leave is used for FMLA, the leave is FMLA protected.
Can my employer require me to use FMLA?
Yes, with limited exceptions, the employer may require employees to use accrued paid leave while FMLA. The paid leave runs concurrently with the unpaid FMLA leave, meaning the paid FMLA leave will be credited against the employee’s 12 week annual entitlement.
What can I use FMLA for?
- For the birth of a child, and to bond with the newborn child or a newly adopted child;
- To care for an immediate family member;
- For health reasons because of a serious health condition that renders the employee unable to work;
- Certain exigencies related to military service or caring for a service member.
Can I use FMLA intermittently?
Yes, when medically necessary, an employee may take leave intermittently, in separate blocks of time or on a reduced schedule. An example of this would be an employee needing to taking a reduced schedule intermittent leave when multiple sclerosis prevents the employee from working a full work week.
What is a serious health condition?
Serious health conditions under FMLA are defined as:
- Conditions requiring an overnight stay in a hospital or other medical facility;
- Conditions that incapacitate you or your family member for more than three consecutive days and have ongoing treatment;
- Chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and
- Pregnancy.
Can my employer require me to get a doctor’s note?
Yes, an employer may require an employee to get a doctor’s note if the leave is related to a serious health condition of the employee or the care of an immediate family member. The employer must give the employee 15 days to obtain the doctor’s note.
Can my employer make me get a second opinion?
Yes, an employer may require you to get a second or third opinion from a doctor of their choosing.
Can my employer make me give them my medical records?
No, but the employer may request sufficient information to establish a serious health condition exists. If the employee cannot establish this without providing medical records, it may be necessary to provide them.
Does my employer have to give me my job back when I return from FMLA leave?
FMLA leave is job protected, this means that the employer must return you to the same or nearly identical job you held before.
If the employer places you in a new job, it must:
- Offer the same work schedule and be geographically close worksite;
- Involve the same general level of skill, effort, responsibility and authority;
- Offer the same compensation and benefits.
What can I do if my FMLA rights have been violated?
An employee who’s FMLA rights have been violated has three options:
- File a complaint with Human Resources;
- File a complaint with the Wage and Hour Division of the U.S. Department of Labor;
- Bring a lawsuit against the employer for FMLA interference and/or FMLA retaliation/discrimination.
DO I HAVE A FMLA claim?
There are two types of claims that may be brought under the Family Medical Leave Act (FMLA). The first type of claim under the Family Medical Leave Act is a FMLA Interference claim. This type of claim arises when the employer interferes with or denies an entitled employee’s rights under the FMLA. An example of FMLA interference would be an employer denying an entitled employee FMLA leave for pregnancy. The second type of claim under the Family Medical Leave Act is a FMLA Retaliation/Discrimination claim. An example of FMLA retaliation would be if an employer demoted an employee for taking FMLA leave.
An employee may have a claim for FMLA interference, FMLA retaliation, or both. For example, if an employer terminates an employee for requesting FMLA, they have both interfered with the employees FMLA rights and retaliated against the employee for asserting those rights. Thus, the employee would have both an FMLA Interference and an FMLA Retaliation claim.
FMLA Interference claims
To establish an FMLA interference claim, the employee has the burden of proving;
- the employee was an eligible employee under the FMLA;
- the employer is covered under the FMLA;
- the employee was entitled to FMLA leave under the act;
- the employee gave the employer notice of the intent to use FMLA leave;
- the employer denied the employee’s FMLA request.
1. Eligible Employee under the Family Medical Leave Act
The first requirement for an FMLA Interference claim requires that the employee be eligible under the Family Medical Leave Act. This simply references the statutory requirements for an employee to take FMLA leave. As described above, they are:
- The employee must have worked for the employer for at least 12 months;
- The employee must have worked 1,250 hours within the past year prior to the start of FMLA leave; and
- The employee must work at a location where the employer has 50 or more employees within 75 miles.
2. Employer is Covered Under the Family Medical Leave Act
The second requirement for an FMLA Interference claim is that the employer is covered by the Family Medical Leave Act, which simply means the employer meets the statutory requirements obligating them to grant employees the rights guaranteed in the FMLA. As described above, The FMLA applies to all public employees and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding year.
3. Employee was Entitled to FMLA Leave
The third requirement for an FMLA interference claim is that the employee was entitled to FMLA leave. This generally requires both that the employee had FMLA time available, and that the employee requested FMLA leave for a permissible purpose. As described above, permissible uses of FMLA leave include:
- The birth of a child, and to bond with the newborn child or a newly adopted child;
- Care for an immediate family member;
- Health reasons due to a serious health condition that renders the employee unable to work;
- Certain exigencies related to military service or caring for a service member.
4. Employee Gave Employer Notice of Intent to Use FMLA Leave
This requirement simply requires the employer have notice of the employee’s intent to use FMLA leave to be held liable for interfering with the employee’s FMLA rights. While generally not an issue, questions can arise if the employee does not clearly communicate that the leave they are requesting is specifically FMLA leave.
5. Employer Denied Entitled Employee FMLA Benefits
This requirement simply requires the employee demonstrate the employer denied a FMLA benefit. This includes denial of FMLA leave by termination, preventing the employee from taking the full 12 weeks guaranteed by FMLA, denial of reinstatement following FMLA leave, or denying initial permission to take FMLA leave.
FMLA Retaliation
To establish a FMLA Retaliation claim, the employee must establish: 1.) the employee engaged in activity protected under the FMLA; 2.) the employer was aware of the employee’s exercise of protected FMLA rights; 3.) the employee subsequently suffered an adverse action by the employer; and 4.) there is a causal connection between the adverse action and the protected FMLA activity.
1. Protected Activity Under FMLA
The first requirement of an FMLA Retaliation claim is that the employee engaged in activity protected under the Family Medical Leave Act. There are three main types of protected activity under the FMLA.
First, the FMLA prohibits retaliation for exercising or attempting to exercise your rights under the FMLA. In layman’s terms, this generally means the employee took or attempted to take FMLA leave.
Second, the FMLA prohibits retaliation for opposing or complaining about an FMLA violation by the employer. This can include the employee asserting, on behalf of themselves or another, that the employer is violating the FMLA.
Lastly, the FMLA prohibits an employer from retaliating against an employee for filing a formal charge relating to a FMLA violation, for giving, or being about to give, information in connection with an inquiry into FMLA violations, or testifying in an inquiry or investigation into FMLA violations.
2. Employer Awareness of the Exercise of FMLA Rights
The second requirement of an FMLA Retaliation claim is that the employer was aware of employee’s exercise of protected FMLA rights. This element requires the employee to demonstrate that the person responsible for the retaliation, referred to as the decisionmaker, was aware the employee had exercised rights protected under the FMLA.
3. Employee Suffered Adverse Action
An adverse employment action in a FMLA Retaliation claim is a “materially adverse change in the terms of employment.” Adverse action includes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.
4. Causal Connection Between Protected Activity and Adverse Action
The last requirement for an FMLA Retaliation claim is that a causal connection exists between the protected activity and the adverse action. In layman’s terms, this requires the employee demonstrate that the employer took the adverse action because the employee engaged in protected activity under the FMLA.
There are various methods by which an employee can demonstrate causation. The employee may be able to point to direct evidence of retaliatory motive, such as an employer’s statement that the employee will be terminated for taking FMLA leave.
The law also provides for a burden shifting framework where there is no direct evidence of FMLA retaliation. Under this framework, the employee presents evidence of circumstances which could give rise to an inference of FMLA retaliation. The employer is permitted to come forth with a legitimate, nonretaliatory reason for the adverse action. If the employee can successfully rebut the employer’s proffered nonretaliatory reason, the case will proceed to trial where the finder of fact (jury or judge) will make a factual determination whether to believe the employer. If this seems complicated, it is because it is.
All you need to know is that if your employer does not make any incriminating statements of retaliatory motive, there are other ways of establishing causation, such as temporal proximity of the FMLA protected activity and the adverse action, and demonstrating that the proffered nonretaliatory reason is a pretext or lie, to justify the FMLA retaliation.
do i have a fmla lawsuit?
To summarize, in order to have a viable FMLA interference claim, you must be able to demonstrate that you were eligible, that the employer is covered by the FMLA, the FMLA leave was for a permissible purpose, you gave the employer notice of the intent to use FMLA, and that the employer denied the FMLA request.
To have a FMLA retaliation claim, you must demonstrate you engaged in protected activity under the FMLA, the employer was aware of your exercise of FMLA rights, you suffered an adverse action, and that the employer took the adverse action because you exercised your FMLA rights.
However, even if you can satisfy the legal requirements for an FMLA claim, the employer may have defenses available which you would have to overcome. Additionally, in order to have a viable FMLA lawsuit, the damages which you may recover must justify the time and expense of bringing an FMLA lawsuit. You can learn more about what your FMLA case may be worth by visiting our Know Your Rights, Case Valuation page.
FMLA claims are complicated, and the only way to know for sure whether you have a viable FMLA lawsuit is to contact an experienced employment attorney. If you believe your FMLA rights have been violated, contact Fett Law today and we would be happy to review your case free of charge. Learn more about Fett Law by visiting our homepage.