The Family and Medical Leave Act Provides Eligible Employees with up to 12 Weeks of Unpaid Leave Per Year
It also requires that an employee’s group health benefits be maintained during the leave and requires that an employee be returned to their same or an equivalent job at the end of their FMLA leave.
However, not all employees are eligible. To be eligible for FMLA leave an employee must have worked for the employer for at least 1 year and during that year the employee must have worked at least 1,250 hours within the last 12 months. Keep in mind that not all employers are required to offer FMLA leave to their employees. A covered employer for purposes of the FMLA is one who employs 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers. If the employer has less than 50 employees or if the employee has not worked for at least one year, the FMLA does not apply.
If the above requirements are met, an employee is entitled to FMLA leave in the following situations:
- For the birth of a son or daughter;
- For the placement of a child for adoption or foster care;
- To care for an immediate family member, which includes a spouse, child or parent, suffering from a serious medical condition;
- When an employee is unable to work due to a serious health condition;
- For any exigency arising out of the fact that the employee’s spouse, son, daughter or parent is a military member on covered active duty or called to covered active duty status.
Employers have numerous obligations under the FMLA. Every covered-employer is required to post a notice explaining the FMLA. This notice must set forth the employees’ rights and responsibilities under the FMLA and must also include the procedures for filing complaints with the Wage and Hour Division of the Department of Labor. Employers may be fined for failure to provide notice. It is important to note that an employee requesting leave for the first time is not required to specifically mention the FMLA. Rather, when an employer acquires knowledge that employee’s leave may be for a FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within 5 business days. The employer can also request for certification from the employee’s health care provider. If such a certification is requested, the employee must be given 15 days to complete the form.
Most FMLA lawsuits stem from claims that an employer either unlawfully denied FMLA leave or retaliated against an employee who exercised their FMLA rights. An employee has 2 years to file a lawsuit if he or she believes the employer engaged in unlawful conduct. The statute of limitations can be extended to 3 years if the employee is able to prove that the violation was willful. Although an employee may choose to file a complaint with the Department of Labor, this is not required and an employee may proceed immediately to court. Both Federal court and State court have jurisdiction to hear FMLA claims. An employee who prevails on a FMLA claim may be entitled to back pay, liquidated damages, reasonable attorney’s fees and costs and other equitable relief which could include reinstatement.
If you believe your FMLA rights have been violated, please contact Dworken & Bernstein for a free consultation.