The Family and Medical Leave Act, 29 U.S.C. § 2601, et seq., also known as the FMLA, provides that eligible employees may take up to twelve weeks of unpaid leave during any twelve-month period, for any of four general reasons:
1. For the birth and care of a newborn child;
2. Adoption placement;
3. Care for an immediate family member (spouse, parent, or child) with a serious health condition; or
4. Due to the employee’s inability to work resulting from a serious health condition.
Please note that employees may have additional rights to leave for military duty or purposes under USERRA. In general, employers covered by the FMLA must have at least fifty employees for at least twenty weeks preceding the filing of a federal complaint, and must be engaged in commerce or in any industry affecting commerce. In order to be eligible for FMLA leave, an employee must have been employed by the employer for at least twelve months and at least 1250 hours during the twelve months immediately preceding the leave. Further, the employee must be work at a site where there are at least fifty employees within seventy-five miles.
Generally, an employer may not interfere with any eligible employee’s FMLA rights. It is a violation of the FMLA to fail to notify or inform an employee of his or her FMLA rights once the employer has notice of any condition that may qualify the employee for leave. It is also a violation to deny an employee of properly requested leave, or to fail to reinstate the employee at the end of leave. Employees must be reinstated to the same or an equivalent position after return from leave. Further, the employer is prohibited from retaliating against any employee for exercising his or her rights under the FMLA.
It is not necessary to file a charge with any administrative agency before filing a federal lawsuit under the FMLA. However, suit must be filed with two years of the unlawful act. If the employer has willfully violated the FMLA, an employee has three years to file suit.
A successful plaintiff who sues his or her employer for a violation of the FMLA may be entitled to back pay, actual monetary loss sustained as a result of the violation (up to twelve weeks of pay), liquidated damages equal to the amount of money lost by the plaintiff, injunctive relief, court and related costs, and attorneys’ fees. Chicago employment lawyer Alejandro Caffarelli has handled and won multiple FMLA jury trials.