The Family and Medical Leave Act of 1993 (FMLA) is a federal law requiring covered employers to provide employees job-protected and unpaid leave for qualified medical and family reasons. Qualified medical and family reasons include: personal or family illness, family military leave, pregnancy, adoption, or the foster care placement of a child.
The FMLA was intended to balance the demands of work and family. It allows eligible employees to take up to 12 work weeks of unpaid leave during any 12-month period to attend to the serious health condition of the employee, parent, spouse or child, or for pregnancy or care of a newborn child, or for adoption or foster care of a child. In order to be eligible for FMLA leave, an employee must have been at the business at least 12 months, and worked at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. The FMLA covers both public- and private-sector employees.
Here are eight common employer violations that can justify a lawsuit:
- You Don’t Realize You’re Eligible for FMLA Leave (But Your Employer Does). The FMLA is still a mystery to many employees. Your employer should alert you to your eligibility if it knows the general details of your need for leave. Congress realized employers are better-situated to know when they’re obligated to provide the leave, and expects employers to speak up if needed leave is FMLA-eligible.
- You Were Fired Shortly After Taking FMLA Leave. It’s an unfortunate fact that many employers get mad when you miss time, even if your absence is protected by law. If you were fired within a few months after taking FMLA leave, you may have a claim for FMLA retaliation.
- You Were Fired Just Before an FMLA-Covered Leave of Absence. Some employers will fire an employee on bogus grounds to avoid extending FMLA leave to a worker who’s about to miss a few months of work. This preemptive effort usually takes place in the month or two before the leave is scheduled to begin. Beware if you’re getting close to taking scheduled leave for surgery, extended in-patient care, or childbirth, or if you’re scheduled for medical tests that, depending on the result, could lead to extended absence.
- You’re Pressured to Delay FMLA Leave To Help With An Upcoming Project or Deadline. I’ve represented employees who postponed surgeries for fear they’d be fired. Their bosses made it quite clear that taking time off as scheduled would interfere with key workplace goals. So the employees kept putting off treatment. In the end, however, this didn’t save their jobs. They were fired the moment they announced they could no longer wait. An employer that threatens or harasses about taking FMLA leave is violating the law.
- Your Employer’s Records Show Your FMLA Leave Balance To Be Smaller Than It Really Is. Miscalculation of FMLA leave benefits is another violation. And it doesn’t matter if the miscalculation is an honest mistake. Congress decided FMLA leave is so important that an employer is liable for any miscalculation that reduces your true FMLA leave balance. It knew that an employer can thwart the use of leave simply by erroneously claiming the employee doesn’t have any left. Miscalculations are common. It can happen, for example, when you take FMLA leave in spurts, which is harder to track. It can also happen when your employer mistakenly treats ordinary medical absences, like an annual checkup (which is usually not covered) as FMLA leave. You should track your FMLA usage separately from your employer to permit challenges to such miscalculations.
- You’re Being Forced to Take More FMLA Leave than You Need. Your employer may push you to take all FMLA leave at once. Or it might instruct you to take an entire day off when you only need half. Employers do this to quickly drain your leave balance and limit the number of future occasions you can take leave. This is a clear violation of the FMLA. You have the right to take only what you need. Only you and your doctor can determine your health-related leave needs.
- Your Employer Is Demanding To Talk to Your Doctor. Your employer may ask you for (or insist on) authorization to speak directly to your doctor’s office. You are never required to do this. I can’t think of a good reason to ever authorize your employer to speak with, visit with or obtain records from any healthcare provider. Your properly-completed federally- approved FMLA certification (the WH-380-F for self-care and the WH-380-E for attending to ill family members) is all your employer needs. This form does not require disclosure of your actual condition (unless it is pregnancy). It only asks general questions things like expected frequency of visits and expected duration of any absences. Note: Do not use any version of this form created by your employer. Some employers have created look-alike versions of the WH-380-F and WH-380-E that ask for more information than the law allows. You may waive your rights if you voluntarily complete such a form.
- Your Employer Asks for More and More Details about Your Medical Situation. Some employers continue to ask for information long after an employee has satisfied legal requirements. This is another type of harassment intended to discourage employees from taking FMLA leave. It can also be an unlawful form of interference, designed to delay approval.