FMLA Retaliation

Who is Covered by The Family Medical Leave Act (FMLA)?

The 1993 Family Medical Leave Act helps employees balance family needs with their work responsibilities. This legislation covers employers who meet the following criteria:

• Local, state, or federal government agencies, regardless of the number of employees
• Private-sector organizations with at least 50 employees in 20 workweeks in the previous or current calendar year
• Elementary and secondary schools, regardless of the number of employees and whether it’s public or private.

Who is Eligible for FMLA Protection?

Eligible employees can take unpaid leave for specific reasons while keeping group health insurance. The requirements for eligibility include:

• Works for a covered employer at a location where the employer has 50 or more employees within 75 miles
• Has worked for the employer for at least 12 months, consecutive or not
• Has worked at least 1,250 hours of service in the 12 months immediately preceding the leave

You may qualify for 12 weeks of FMLA in a calendar year if you or a close family member has a serious injury, illness, impairment, or mental condition that requires continuing treatment by a health care provider or care in a residential medical facility, inpatient hospice, or hospital.

Additional situations that meet requirements include an injury or condition that results in missing work on a recurring basis for more than a few days, such as:

• Birth or adoption of a child
• Childcare within the first year after birth
• Parental, child, or spousal care for a relative with a serious health condition
• Personal long-term health conditions that prevent you from performing your job duties
• Chronic conditions

Active service member family members are eligible for 26 weeks in a 12-month period

How Can I Get Leave Under FMLA?

Once you confirm that your employer is covered and you are eligible, you must give clear notice, preferably in writing, that you need medical leave. Once notified, a human resources representative or manager may request a doctor’s note or provide forms that your medical provider must complete.

Additional documentation may also be required, depending on your unique situation. The employee handbook or your HR representative can provide the steps you need to take when arranging for leave covered under FMLA. You must provide enough information that your employer can confirm that your leave is or is not covered.

Once the paperwork is in order, there are three different types of FMLA available.

• Continuous FMLA is for occasions when you are absent for more than three consecutive days and have received medical treatment.
• Intermittent leave can be distributed in weekly, daily, or hourly increments. This is useful if you or a loved one requires ongoing treatment for medical conditions.
• Reduced FMLA reduces the hours you work daily or weekly. This may be to help care for loved ones or for stress reduction.

FMLA is unpaid leave. However, under certain circumstances, you may receive a payment if you have accrued vacation, sick days, or other types of personal leave. Check the company handbook or ask HR if this is an option.

What Happens Upon Returning From FMLA?

During your leave, you have the same health benefits as you had when working full time. When you return from leave, the guidelines require that you must be restored to the same position as before your leave or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

What Are FMLA Violations?

There are three types of FMLA-related claims. Individuals and organizations may be found liable for violations in either case.

The first type is an entitlement, also known as an interference claim. They have two requirements. The first is that the employer interferes, discourages, or refuses to authorize FMLA leave. The second is that the interference results in a monetary loss to the employee.

If an employer provides misinformation or characterizes FMLA and its entitlements incorrectly, there may be grounds for a claim. If no information is provided regarding FMLA, it can also be construed as interference if you are entitled to leave.

The second type is discrimination claims, which arise when an employer takes an adverse action against an employee because the employee exercised his or her rights under the FMLA. FMLA discrimination occurs when an employee is punished for taking FMLA leave, such as:

• Bad reviews or disciplinary actions, including poor performance reviews for tasks that were not completed while you were on leave. If the time you were away is counted against you and becomes a precursor to employment termination, it could be a form of discrimination and precede a potential wrongful termination case.
• Reinstatement to a lesser position such as an employee who held a supervisor position at the time of their leave is a sales associate or cashier upon their return. Find out the reason for the demotion and keep all emails, written documentation, and notes from conversations with supervisors and managers. This can help you build a case if necessary.
• Reduced pay or benefits after FMLA leave. Federal law states that you are entitled to the same compensation that you had before your leave. Review paystubs and benefits upon your return to ensure everything is the same.

The third type is a retaliation claim. FMLA retaliation occurs when an employee opposes the employer’s unlawful actions under the FMLA. For example, if an employee complains about an employer’s refusal to comply with his or her rights under the FMLA, then an employer may not punish an employee because that employee opposed the employer’s unlawful FMLA practices.

What Damages Are Available in an FMLA Settlement?

A judge or jury may make monetary awards for one or more of the following damages.

• Lost back pay which includes benefits, wages, and salary lost as a result of wrongful actions.
• Lost front pay refers to benefits, wages, and salary you will lose in the future as a result of employer actions.
• Employers also are presumptively liable for liquidated damages in an amount double to the award of lost back pay plus lost front pay.

The value of your employment case is dependent upon the strengths of your case and its merit. If your case can survive summary judgment, the value increases. To recover front and back pay, you must demonstrate how much in wages you already lost and that you have tried to secure another job since your termination. Anti-discrimination statutes allow for punitive damages and can add value to your case.