The Family Medical Leave Act: Understanding Your Right to Job-protected Leave

My employer gave me six weeks of personal leave to give birth and care for my newborn baby. At the time my leave began, Human Resources told me that I did not qualify for leave under the Family Medical Leave Act (“FMLA”) because I had worked full time at the company for 11.5 months only. At the end of my six-week leave period, Human Resources told me that the Company had decided to terminate me.  Do I have a claim?

Yes, assuming that the company is covered by the FMLA (which means it employs 50 or more employees within a 75-mile radius of your worksite for each working day during 20 or more calendar weeks in the current or preceding calendar year). Under the FMLA, an “eligible employee” is an employee who has worked for her employer for at least 12 months and has worked at least 1,250 hours during the 12 month-period immediately preceding the start of the leave. The required 1,250 hours equates to approximately 24 hours per week. An “eligible employee” is entitled to take 12 weeks of leave during any 12-month period because of the birth of a child and to care for that child. At the conclusion of that leave, the employer must reinstate the employee to same position or to an equivalent position (i.e., same pay, benefits, etc.).

In the past, an employee’s FMLA eligibility was determined based on the date when the medical leave was to begin. So, in this example, the employee would not have been an “eligible employee” because she had not worked at the company for 12 months at the beginning of her leave.

Thankfully, this rule changed in 2009 when the Department of Labor amended the regulations to the FMLA. Specifically, the FMLA regulations now provide that “[a]n employee may be on ‘non-FMLA leave’ at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be ‘FMLA leave.’” 29 C.F.R. § 825.110(d). Accordingly, in this example, the employee became FMLA eligible in the third week of her leave because she had been employed by the company for 12 months. So, from that point on, the employee’s personal leave was transformed to job-protected leave under the FMLA. Hence, the company’s decision to terminate her employment at the conclusion of her job-protected leave violated her right to reinstatement under the FMLA.

If you believe that your rights under the FMLA have been violated, you should immediately consult with an attorney who is familiar with the FMLA. SMITH LAW has obtained favorable settlements on behalf of numerous employees whose rights under the FMLA have been violated. Please call us for a FREE case evaluation so we can determine if we can help you too.

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