In 1993, the Family and Medical Leave Act (FMLA) extended legal protection for workers in the United States by providing certain employees with the right to take up to twelve weeks of unpaid, job-protected time off work to deal with serious health conditions or some family needs. An eligible employee may take FMLA leave all at once or intermittently as needed.

It is illegal for an employer to fire or retaliate against an employee for using the FMLA. If you believe that your rights under the FMLA have been violated, you can make a claim against your employer or former employer. This kind of retaliation often goes hand-in-hand with discrimination based on disability. The disability discrimination and FMLA retaliation lawyers at Ross • Scalise Employment Lawyers can help protect your rights.

When an employee seeks to leave for an FMLA-qualifying reason for the first time, the employee does not have to specifically ask to apply for FMLA leave. Even if the employee doesn’t know about the FMLA, when he or she requests leave and the employer finds out that it may be for an FMLA-qualifying reason, the employer must provide the employee with notice concerning his or her eligibility for FMLA leave.

An employee who returns from FMLA leave must be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

In our years of experience as employment law attorneys, we have seen many cases where after an employee applies for or uses FMLA leave, the employer changes their job duties, demotes them, starts writing them up, puts them on “Performance Improvement Plans,” or even terminates their employment. If you have been retaliated against for asking for time off or taking time off under the FLSA, call us for help.

The FMLA only applies to employers that meet certain criteria.

A covered employer is a:

  • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

Who is Eligible for FMLA?

Generally, an employee is eligible for FMLA leave if: (1) he or she has worked for their employer for at least 12 months; (2) worked at least 1,250 hours over the past 12 months; and (3) works at a location where the company employs 50 or more employees within 75 miles.

If an employee meets these requirements, the employer must provide him or her with up to 12 workweeks* of unpaid leave each year for any of the following reasons:

  • To take medical leave when the employee is unable to work because of a serious health condition;
  • To care for an immediate family member (spouse, child, or parent) with a serious health condition;
  • The birth and care of the newborn child of an employee; or
  • Placement with the employee of a child for adoption or foster care.

* An eligible employee may also take up to 26 workweeks of leave during a “single 12-month period” to care for a covered military service member with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the service member. The “single 12-month period” for military caregiver leave is different from the 12-month period used for other FMLA leave reasons.

An employee must comply with the employer’s usual and customary requirements for requesting leave and provide enough information for the employer to reasonably determine whether the FMLA applies. Generally, employees must request leave 30 days in advance when the need for leave is foreseeable. When that isn’t possible, the employee must provide notice as soon as possible and practical under the circumstances.

If you are experiencing retaliation after applying for or using FMLA leave, don’t wait for the worst to happen before you call us. We can help assert your rights and work to get you the compensation you deserve.