FMLA and Leave Discrimination

The Family Medical Leave Act (FMLA) entitles eligible employees to 12 workweeks of leave per year for reasons such as:

  • The birth of a child
  • The adoption of a child
  • To care for a sick spouse, child or parent
  • Health issues that make it impossible for the employee to perform their job
  • Military caregiver leave or for any “qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is a covered military member on ‘covered active duty,’” according to the U.S. Department of Labor.

The FMLA only applies to employees who have worked for their employer for 12 months (this does not have to be consecutive) and whose employers have over 50 employees within 75 miles.

If you have tried to exercise your rights under the FMLA and have been denied leave or suffered an adverse employment action as a result, we can help. At Spiggle Law, we have extensive experience fighting for workers’ rights and standing up against illegal employment practices. We will work as your advisers and mentors to ensure that you get the time and compensation you are due.

Three Things You Can Do Now.
  1. You have two choices when filing a FMLA complaint: you can file with the Department Labor, or you can file a lawsuit in federal court.
  2. You must file an FMLA claim within two years of the date of the violation. You get one extra year if the violation was willful (meaning intentional), but you should still file as soon as possible.
  3. If your employer does not have at least 50 or more employees in your location or within 75 miles of your location, your employer is not subject to the FMLA. And, as always, call a lawyer.

Frequently Asked Questions

I have worked for my employer for more than a year, but my time was not consecutive. Am I entitled to FMLA leave?

To be eligible for FMLA leave, you must have worked for your employer for at least 12 months. You do not need to have worked for 12 months consecutively, so long as you have worked at least 1,250 hours during the 12 months before the start of your leave.

How much notice do I have to give before taking leave?

It depends on the type of leave. If you are pregnant, are planning to adopt a child, or are planning to undergo surgery, you must give at least 30 days’ notice. If that is not possible, you must give notice as soon as possible. Your employer must decide whether your leave qualifies as FMLA leave within five business days.

Does my employer have to pay me for time I take off work to take care of a family member with a serious health condition?

No. Your employer simply must allow you to take time off from work. The law does not require that time to be paid time off. However, you are entitled to continue to accrue benefits during your leave, and you may take advantage of paid time off that you have accrued, such as vacation.

Does my employer have to hold my job while I’m out on FMLA leave?

Yes, in most cases, your employer must hold your job, maintain your health benefits, and reinstate you to your position when you return from leave.

I am being considered for foster care placement. Am I protected by the FMLA?

Yes, you can take FMLA leave for the adoption or placement of a foster child, not just for the birth of a child.

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