Family and Medical Leave & Employment Law

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 12-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 work at a site where there are at least fifty employees within seventy-five miles.

Employers & FMLA Rights

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, a suit must be filed within 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; contact our firm today for a free consultation regarding the Family and Medical Leave Act.

FAQs About Family and Medical Leave Employment Law

Q: What businesses and employers does the FMLA apply to?

A: A private employer is covered under the FMLA if it has 50 or more employees on its payroll for 20 or more calendar workweeks in either the current or preceding calendar year.

Q: Who can take FMLA leave?

A: Any individual who is employed by a covered employer is eligible for FMLA leave. However, an employee must have worked for a covered employer for at least 12 months and must have worked at least 1,250 hours during the 12 months before the first day of the requested leave.

Q: Does sick leave or PTO count toward the 1,250 hours?

A: Time taken off using sick leave or PTO during the 12-month period does not apply towards the 1,250 hours required to be eligible for FMLA leave. The 1,250 hours include only those hours actually worked for the employer.

Q: When can eligible employees use FMLA leave?

A: FMLA leave is authorized only for qualifying reasons expressed in the statute. These reasons include leave related to pregnancy, birth, adoption, and foster care, care for family members with serious health conditions, personal serious health conditions, military qualifying exigency leave, or care for a military family member with an injury or illness.

Q: What restrictions are in place for employees taking a leave for the birth of their adopted child?

A: Employees may take up to 12 weeks of leave if a son or daughter is placed with them for adoption, either before or after placement, during a 12-month period. The 12 month-period in which leave is authorized expires 12 months from the date the child is first placed with the parent.

Q: What is considered a serious health condition? How do I prove it?

A: FMLA leave is authorized for an employee’s or family member’s serious health condition if the condition makes the employee unable to perform the serious functions of the job. A serious health condition typically involves demonstrating an inability to perform regular daily activities, a periodic incapacity, permanent or long-term incapacity, a chronic condition, or a condition that requires absence to receive ongoing treatment. Some examples of serious health conditions include, but are not limited to, heart conditions, most cancers, strokes, severe nervous disorders, injuries, childbirth, or potentially mental illness.

Q: Is it possible to continue using FMLA for leave as the result of a chronic health condition?

A: Yes, many chronic conditions fall into the definition of “serious health condition” under the FMLA. Employees may take leave intermittently if needed or on a reduced leave schedule if the leave is for a chronic serious health condition.

Q: What do I need to tell my employer if I plan to take FMLA leave?

A: Employees must provide employers with at least 30 days advance written or verbal notice for foreseeable leave. If 30 days is not possible, or the leave is not foreseeable, notice must be provided as soon as possible. Additionally, although not required by the FMLA, an employer is permitted to require certification from an employee’s or family member’s health care provider for leave based on a serious health condition. It is also worth noting that an employee does not need to specifically assert rights under the FMLA, or even mention the statute by name, to be protected under the law. In other words, so long as an employee has provided their employer with sufficient information to determine that FMLA leave may apply, it is the employer’s responsibility to notify the employee of their right to take FMLA leave.

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