Family And Medical Leave Act (FMLA) Violations

The Family and Medical Leave Act (“FMLA”) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. An employee is eligible for FMLA leave if they have worked for their employer for at least 12 months, at least 1,250 hours over the past 12 months, and worked at a location where the company employs 50 or more employees within a 75-mile radius.

According to the United States Department of Labor, FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. Qualified employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

  • For the birth and care of the newborn child of an employee;
  • For placement with the employee of a child for adoption or foster care;
  • To care for an immediate family member (spouse, child or parent) with a serious health condition; or
  • To take medical leave when the employee is unable to work because of a serious health condition.

The FMLA does not require an employee to take 12 weeks of uninterrupted leave. If medically necessary, an employee may qualify for “intermittent leave.” Intermittent leave enables an employee to take leave in certain blocks of time, or to take leave that will reduce their weekly or daily schedule. However, employees needing intermittent/reduced schedule leave for foreseeable medical treatments must work with their employers to schedule the leave so as to not disrupt the employer’s operations.

FREQUENTLY ASKED QUESTIONS

Can I Take FMLA Leave?

In order to be eligible to take leave under the FMLA, an employee must:

  • work for a covered employer;
  • have worked 1,250 hours during the 12 months prior to the start of leave; ( special hours of service rules apply to airline flight crew members )
  • work at a location where the employer has 50 or more employees within 75 miles; and
  • have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. In general, only employment within seven years is counted unless the break in service is (1) due to an employee’s fulfillment of military obligations, or (2) governed by a collective bargaining agreement or other written agreement. See https://www.dol.gov/agencies/whd/fmla/faq.

What Constitutes A FMLA Violation?

Most commonly, FMLA violations take two forms: FMLA interference or retaliation for exercising rights under FMLA or reporting an FMLA violation.

FMLA provides that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise” FMLA rights. 29 U.S.C. § 2615(a)(1). To prevail on  FMLA  interference  claim, employee need only show that his employer deprived him of an  FMLA  entitlement and no finding of ill intent is required; accordingly, employee must establish that:

  • he was eligible for the  FMLA’s  protections;
  • his employer was covered by the  FMLA;
  • he was entitled to leave under the  FMLA;
  • he provided sufficient notice of his intent to take leave; and
  • his employer denied him  FMLA  benefits to which he was entitled.

These claims are especially appealing to plaintiffs because they do not require proving any intent by the defendant. Burnett v. LFW Inc., 472 F.3d 471 (7th Cir. 2006)

Retaliation. In contrast, to prove a retaliation claim, a plaintiff must show that:

  • the employee engaged in statutorily protected activity;
  • the employer took adverse action against the employee; and
  • the protected activity caused the adverse action. Freelain v. Vill. of Oak Park, 888 F.3d 895 (7th Cir. 2018).
    Interference and Retaliation claims are not mutually exclusive and plaintiffs often bring both claims in the same complaint. It is also common to bring an ADA claim with an FMLA claim, whether based on interference, retaliation or both.

Is FMLA Leave Paid?

No. The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. Talk to your HR representative or supervisor, or look to your company’s employee handbook, for additional information on paid leave options.

Do I Have to Prove That I Have A Serious Health Condition?

An employer may require that the need for leave for a serious health condition of the employee or the employee’s immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification

Do I Have To Give My Employer My Medical Records For FMLA Leave?

No. An employee is not required to give the employer his or her medical records. The employer, however, does have a statutory right to request that an employee provide medical certification containing sufficient medical facts to establish that a serious health condition exists.

Do I Need to Tell My Employer That I Need FMLA Leave?

Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable – generally, either the same or next business day. When the need for leave is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with the employer’s usual and customary notice and procedural requirements for requesting leave. Notice requirements of the  FMLA  are not onerous, and employee need not expressly mention the  FMLA  in his leave request or otherwise invoke any of its provisions.  Burnett v. LFW Inc., 472 F.3d 471 (7th Cir. 2006).

For more information on Employer Notice, visit https://www.dol.gov/agencies/whd/fmla/faq

What Will Happen When I Return To Work?

On return from FMLA leave (whether after a block of leave or an instance of intermittent leave), the FMLA requires that the employer return the employee to the same job, or one that is nearly identical (equivalent). If an employee is not restored to the exact same position upon return from FMLA leave, an Employer must restore the employee to a substantially similar position, which requires certain elements to be considered “substantially similar.” If you believe you have not been restored to the same or “substantially similar” job after returning from FMLA, contact an FMLA attorney today.

What Is Job Restoration?

One question that employees routinely pose to our firm is in regard to job restoration. In other words,  what rights does an employee have when he/she returns from FMLA leave?  The short answer is that the FMLA requires that the employer return the employee to the same job, or one that is nearly identical. If an employer is unable to place an employee in the same job, the nearly identical job must offer the same general work schedule, and be at a geographically proximate work site, involve substantially similar duties, responsibilities and skills, and offer identical pay, bonus opportunities and benefits.

If My Rights Have Been Violated, How Long Do I Have To File A Case?

A civil complaint for a violation of the FMLA must be filed within two years of the “last event constituting the alleged violation,” or within three years if the violation is willful. 29 U.S.C. § 2617(c)(1)-(2). A violation is willful if the employer knew or showed reckless disregard for whether its conduct was prohibited by the law. If you wish to file an FMLA case in court, contact an experienced attorney today.

Although the FMLA does not require a litigant to exhaust any administrative remedies, the U.S. Department of Labor, Wage and Hour Division, is tasked with enforcement. For more information on filing a claim with the DOL, visit: https://www.dol.gov/agencies/whd/contact/complaints.

Contact Our Skilled Employment Lawyers

It is important to remember that the FMLA only requires that qualified employers provide eligible employees with unpaid leave. However, employees may be eligible to run certain paid leave concurrently. The FMLA is a complex area of law that requires a detailed, in-depth analysis of the facts and allegations surrounding a purported FMLA violation.

If you believe that your rights, pursuant to FMLA leave, have been violated, contact one of our experienced  employment attorneys  today at Foote, Mielke, Chavez & O’Neil, LLC for a free case evaluation.  Contact us online  or by telephone at 630-232-7450. We handle cases throughout the Chicagoland area and have an office in Geneva, Illinois.

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