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Family & Medical Leave Act (FMLA): The Basics and the Potential Violations of Your Rights

What is the Family Medical Leave Act?

The Family and Medical Leave Act of 1993 (FMLA) is a United States labor law requiring covered employers to provide employees with up to 12 weeks of job-protected, unpaid leave for qualified medical and family reasons.

Covered employers must grant FMLA leave for one or more of the following situations:

  1. The employee cannot work because of a serious medical condition;
  2. The employee must care for an immediate family member that has a serious medical condition;
  3. The birth and/or subsequent care of the employee’s child;
  4. The placement and/or subsequent care of an adopted or foster care child; or
  5. A “qualifying exigency” from the employee’s spouse, child or parent being on active duty or has been called to active duty for the National Guard or Reserve in support of a contingency operation.

Who does FMLA cover?

The Act covers the following employers:

  • All public agencies;
  • All public and private elementary and secondary schools; and
  • Private businesses with 50 or more employees

Eligible employees must:

  • Work for a covered employer;
  • Work 1,250 hours during the 12 months prior to the start of leave;
  • Work at a location where 50 or more employees work at a single location or within 75 miles of that location; and
  • Work for the employer for at least 12 months. The 12 months of employment are not required to be consecutive.

What to know about taking FMLA

The Act is a very useful tool for an employee who must be absent from work due to an illness, the illness of an immediate family member, birth of a child, or the placement or care of an adopted or foster child. In theory, the Act is there to simplify and support the lives of workers in need of leave to care for themselves or a loved one. However, in practical application, there are many ins and outs of which employees in need of leave should be mindful.

These include:

  1. The Act does not provide for being paid while you are out. However, an employee can elect to use paid leave that they’ve accrued. Employers may require an employee to use paid leave as part of their FMLA leave if the employer provides the employee with the proper notification.
  2. You must provide the appropriate medical certification. If you do not, your employer may be able to cut your leave short.
  3. You can only take leave to care for immediate family members. If you are seeking to take leave for a child over 18, the child must be incapable of self-care.
  4. Whether an employee takes FMLA leave intermittently, or all at one time, the total amount of FMLA leave remains the same which is: 12 weeks per a 12-month timespan, 480 hours of work.

Always make sure to read your employee handbook thoroughly and follow the policies laid out. Failure to comply with the requirements of FMLA may affect your rights and ability to use FMLA leave.

Employee’s basic obligations under FMLA

An employee must provide sufficient facts to put the employer on notice that the absence may be covered by FMLA. There are no magic words, or anything fancy about providing notice. The notice may be given orally or written by the employee. The employer only must be given enough facts that would indicate that the absence may be covered by FMLA. The employee doesn’t even have to say or reference the Act in any way.

FMLA requires that employees give management a heads up about their leave at least 30 days in advance of their time off. If this is not be possible, then notice should be given as soon as practicable.

An employee must provide a completed medical certification by a healthcare provider to the employer within 15 calendar days of the employer’s request.

You should be familiar with your employer’s medical leave policies. If there is an employee handbook, be sure to read the section regarding FMLA. Inquire with HR or your supervisor regarding any questions you may have about your company’s policies and procedures.

Employees should stay in contact with their employer regarding their medical leave status. If anything changes (like being able return sooner or needing additional leave), let the employer know as soon as possible.

Employer’s basic obligations under FMLA

Give employees notice of their rights under FMLA both in written form and in a workplace wall posting.

Once the employer is aware an employee’s eligibility for FMLA, they must provide the employee with notice of their eligibility and notice of their rights and responsibilities.

Provide the employee notice that medical certification is needed and provide the appropriate forms to be completed by a health care provider.

After certification, the employer must provide the employee with a written notice that the medical leave is designated as FMLA leave.

Maintain all employment benefits.

Upon return to work, reinstate the employee the same or equivalent position with the same pay at the same or equivalent location.

Types of FMLA Violations by Employers

There are two types of FMLA violations: interference and retaliation. Interference is when an employer interferes with or denies your right to take FMLA leave or any other right provided by the Act. Retaliation is when an employee “punishes” the employee for exercising their FMLA rights such as termination of employment or a pay cut.

FMLA Interference

It is unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided by the FMLA.

To establish and prevail in a claim for FMLA interference, an employee must show:

  • They are eligible for FMLA leave;
  • Their employer is covered by FMLA;
  • They were entitled to leave under FMLA;
  • They provided sufficient notice of their intent to take leave;
  • The employer denied them FMLA benefits to which they were entitled; and
  • That denial or interference caused harm.

It is not necessary to show that the employer intended to cause harm. Examples of an employer interfering with the exercise of an employee’s FMLA rights include refusing to authorize FMLA leave, discouraging an employee from using such leave, or demanding an employee return to work while still on FMLA leave.

FMLA Retaliation

Employees who exercised their FMLA rights cannot be terminated from their employment for doing so. Upon return to work after taking FMLA leave, an employer must restore the employee to the same or equivalent position. This position, if different from the employee’s position prior to taking leave, must be equivalent in pay, hours, location, and seniority.

To succeed on a retaliation claim under FMLA, an employee does not need to prove the retaliation was the only reason for her termination or other retaliation. Rather, they may establish an FMLA retaliation claim by showing that the protected conduct was a substantial or motivating factor in the employer’s decision.

There are two types of retaliation: direct and indirect.

Direct Retaliation

Under the direct method of proof for establishing an FMLA retaliation claim, a plaintiff must present evidence that their employer took adverse action against them because they exercised their rights under FMLA. If the plaintiff’s evidence is contradicted, the case must proceed to trial unless the employer presents unrebutted evidence that it would have taken the adverse action against the plaintiff even if they had never exercised their FMLA rights.

Essentially, to make an initial claim of retaliation, an employee must show:

  • They engaged in protected activity;
  • The employer took adverse action; and
  • The adverse action was causally connected to the protected activity (for example, taking FMLA leave).

Examples of retaliation would include:

  • Not promoting an employee who otherwise would be promoted;
  • Imposing unwarranted discipline or termination;
  • Denying an employee on FMLA leave benefits given to those who are not on FMLA leave; or
  • Using an employee’s FMLA leave as a negative factor in employment decisions such as raises or promotions.

An employer then must show that they had a legitimate business reason for the adverse action. Then, the burden shifts to the employee to show the reason for termination was simply a cover-up for unlawful discrimination based on their use of FMLA.

Indirect Retaliation

Under the indirect method, to establish a case for FMLA retaliation claims, the plaintiff may present evidence that:

  • They were meeting their employer’s legitimate expectations;
  • They suffered an adverse employment action; and
  • The employer treat similarly situated employees who did not request FMLA leave more favorably.

An employee using the indirect method of proof has to show that after engaging in the protected activity they were treated less favorably than other similarly situated employees who did not engage in protected activity, even though the employee was performing his or her job in a satisfactory manner.

Courts look at the following factors to determine if employees are similarly situated:

  • The employees share the same supervisor;
  • The employees are subject to the same employment policies or rules;
  • The employees perform very similar job tasks and responsibilities;
  • The employees have similar job performance evaluations and disciplinary history; and
  • The employees have approximately the same experience level

Lastly, courts look to whether co-workers engaged in comparable rule or policy violations and received more lenient discipline that employee making the claim of FMLA retaliation.

What are the remedies for a FMLA violation?

Monetary Awards

The Act provides for monetary damages, including compensatory backpay and other lost compensation (such as overtime), plus interest. Further, if the employer cannot prove that they reasonably believed it had complied with the FMLA requirements, they can also receive liquidated damages, which are double the amount of the monetary damages.

Back pay

Generally, the amount of back pay a plaintiff can recover consists of the amount that they would have earned had they not been unlawfully terminated, minus any wages or salaries they have earned (e.g. through new employment) after their termination through an entry of judgment in Plaintiff’s favor.

Front pay

If the plaintiff was fired and reinstatement is not practical, a court may make an award of front pay. This largely consists of lost future earnings, after judgment, over a specific period of time. For example, if you gain new employment but you are not making a much as you did prior to your termination, the court may award you an additional amount to compensate you for that continuing loss of earnings.


In addition to a monetary award, the court can order that the employee be reinstated to his or her former position of employment.

Attorney’s Fees

Lastly, the Act provides that for a successful plaintiff, the court “shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee.” 29 U.S.C. § 2617(a)(3). This means that court can order the employer, who violated an employee’s FMLA rights, to pay for the employee’s attorney in addition to the awards given directly to the employee.

Anyone who believes their FMLA rights were violated by their employer should consult with an experienced employment attorney.

Authored by Karen Munoz, Partner



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