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Medical Leave Discrimination
You may have a claim if your employer denied your request for medical leave. You may also have a claim if your employer terminated you (or took other adverse actions against you) for requesting and taking medical leave.
The Family Medical Leave Act
Under the Family Medical Leave Act of 1993 ("FMLA"), an employee is entitled to take up to 12 weeks of unpaid job-protected leave in a 12-month period for the following reasons:
- The employee's own serious health condition that makes him/her unable to perform the essential functions of his/her job;
- The birth of a child and to care for that child within one year of birth;
- The placement with the employee of a child for adoption or foster care within one year of placement;
- To care for the employee’s spouse, child, or parent who has a serious health condition; or
- For qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on active duty.
Not all Employers and Employees are Covered by the FMLA
Private and public employers with 50 or more employees are covered by the FMLA. Employees who work for a covered employer may qualify for job-protected leave under the FMLA if: (1) they have worked for a covered employer for at least 12 months before the start of their medical leave; (2) they have worked at least 1,250 hours during the 12-month period before the start of their medical leave; and (3) their worksite has at least 50 employees within a 75-mile radius of the worksite. Regarding the 50/75 requirement, the worksite for remote employees will ordinarily be the worksite they report to or, if none, the worksite from which their work is assigned.
Serious Health Condition
Not all ailments qualify as serious health conditions under the FMLA. For instance, the common cold and the flu, which can be treated with bed rest and over-the-counter medication, generally do not qualify as serious health conditions. A serious health condition generally involves an illness that requires inpatient care or continuing treatment by a health provider. Examples of serious health conditions include cancer, heart disease, diabetes, asthma, severe depression, etc. Indeed, certain injuries, including injuries sustained at work, may also qualify as serious health conditions.
Employees who need time off work must provide their employers with enough information to put their employers on notice that they need FMLA-qualifying leave. Accordingly, an employee who merely requests time off work because she "feels sick" probably has not provided enough information to trigger the protections afforded by the FMLA.
Reinstatement/Job Protection
Employees who take leave under the FMLA are entitled to be restored to the same position or an equivalent position when they return from leave. An equivalent position is one that (1) is virtually identical to the employee's prior position in terms of pay, benefits, and working conditions, and (2) involves the same or substantially similar job duties and responsibilities.
Medical Leave Retaliation
An employer cannot retaliate against an employee for requesting and taking job-protected leave under the FMLA by, for example, demoting or terminating an employee. Proving retaliation can be difficult—especially when there is no direct evidence (e.g., an employer's admission that it fired an employee for taking FMLA leave). However, a very close temporal proximity between the last day of the employee's leave (i.e., the protected activity) and the employer's adverse action is typically sufficient to establish retaliation.
Examples of FMLA Claims
Below are a few examples of the FMLA claims resolved by the FMLA attorneys at SMITH LAW:
- An employee who was laid off a few months after she returned from medical leave;
- An employee whose position was eliminated while she was on medical leave;
- An employee who was not reinstated to the same position when she returned from pregnancy leave; and
- An employee who worked for a small company through a large staffing agency. That employee was penalized by the company for absences that should have been protected under the FMLA because of the company's erroneous belief that it was not covered by the FMLA.
Contact Our FMLA Attorneys
If you believe that your employer has violated your rights under the FMLA, then please contact us for a free case evaluation. To initiate that process, please complete the Potential Client Intake. Be mindful of the statute of limitations. Generally, under the FMLA, an employee has two years to file a lawsuit (or three years if the employer's violation was willful).
