The Family Medical Leave Act

author by Mitchell Lloyd Feldman on Dec. 04, 2013

Employment Employee Rights Employment  Wrongful Termination 

Summary: The basics of the FMLA, interference with rights, retaliation and remedies.

The Family and Medical Leave Act (FMLA)

            The FMLA was enacted to help employees balance their work life and family responsibilities by providing them the ability to take up to 12 weeks of unpaid, job-protected leave per year to take care of their own or a family member’s serious medical condition.

How do you qualify for FMLA coverage?

To qualify for FMLA you must fit a certain criteria. The FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees within a 75 mile radius. If you work for a small private company with less than 50 employees within a 75 mile radius you still may have some coverage under city or county ordinances or the companies own policies. Check with your Human Resources.   

Additionally, some companies with multiple locations all reporting to a central location or office may likewise be required to provide FMLA protection to its employees.  Consider smaller places like convenience stores or banks, where each location does not have the requisite number of employees in a single location, but within the 75 mile radius there are 200 employees; then such an employer should legally be required to provide FMLA protection.

            Also to qualify for FMLA you must have worked for your employer for the last 12 months and during those 12 months have worked 1,250 hours. Meaning, if you normally work a 40 hour work week and only took a 2 week vacation you would have accrued hypothetically 2000 hours. Which means that even a person who works part time at 25 hours a week and works 50 weeks a year can be protected by the FMLA.

What must be protected under the FMLA?

            The employer MUST provide FMLA protection for –

1.      The birth and care of a newborn child of an employee;

2.      the placement with the employee of a child for adoption or foster care;

3.      to care for an immediate family member (spouse, child, or parent) with a serious health condition;

4.      if the employee is unable to work because of a serious health condition

What is considered a “serious health condition”?

            The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities.  A Serious Health Condition involves one or more of the following:

a) a hospital stay of at least one night;

b) Incapacity of more than three consecutive calendar days;

c) Incapacity due to a serious chronic disorder which requires periodic visits for treatment (diabetes, chronic back injury, MS, asthma)

d) Incapacity due to pregnancy or for prenatal care;

e) Long term or permanent disability (stroke, cancer, Lupus, Alzheimer’s disease);

f) An absence to receive multiple treatments for restorative surgery after an injury or to prevent a period of incapacity of more than three consecutive days.

Could I use FMLA benefits to take care of my son if he needs to go to the doctor?

            The answer to that question depends on what and how often the child is going to the doctor. If the dependent child has the flu and you are bringing them one time to get some medication and see the doctor that would most likely not qualify as a serious health condition. However, if your dependent child has Multiple Sclerosis and needs ongoing treatment then yes you would be covered.


a) To care for a parent recovering from stroke or treating for cancer

b) To care for a child who is unable to attend school due to asthma or serious medical condition

c) For treatment of your own chronic back injury or condition

d) To provide psychological comfort for your spouse during medical testing for cancer

d) To care for an adult son who suffers from a serious mental condition and is unable to care for him or herself

e) Any work related injury which prevents the employee from being able to work full duties

f) Maternity leave:  leave to give birth or for pregnancy related conditions which require the employee to stay at home.

Do I still keep my health insurance while on leave?

            Yes, under the FMLA, during your leave the employer must maintain the employee’s health coverage under any “group health plan” on the same terms as if the employee had continued to work.

Could I lose my job for taking my FMLA leave?

            Under the FMLA an employee must be restored to their original or equivalent positions with equivalent pay, benefits and other employment terms when they return from FMLA leave. Meaning if you were a Shift Manager before leaving on FMLA and were making $15.00 per hour you cannot come back from leave and be demoted to an associate who makes $10.00. However, an employer can move a returning employee to alternative departments. The job the employee returns to does not need to be exactly the same to be covered, only similar, unless a company handbook or company employee manual provides otherwise.  Read your employee manuals as a starting point and likewise contact your human resources department.

Q: What is an equivalent position?

A: The position must involve the same or substantially similar duties and responsibilities, and require substantially equivalent skill, effort, responsibility, and authority. 

What is FMLA Retaliation and interference?

            Section 105 of the FMLA and section 825.220 of the FMLA regulations prohibit the following actions:

-          An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right.


-          An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right.


-          An employer is prohibited from discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA.


-          All persons, whether or not employers, are prohibited from discharging or in any other way discriminating against any person, whether or not an employee, because that person has —

    • Filed any charge, has instituted, or caused to be instituted, any proceeding under or related to the FMLA;
    • Given, or is about to give, any information in connection with an inquiry or proceeding relating to any right under the FMLA; or
    • Testified, or is about to testify, in any inquiry or proceeding relating to a right under the FMLA.

Examples of prohibited conduct include:

-          Refusing to authorize FMLA leave for an eligible employee,

-          Discouraging an employee from using FMLA leave,

-          Manipulating an employee’s work hours to avoid responsibilities under the FMLA,

-          Using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or,

-          Counting FMLA leave under “no fault” attendance policies.

Sometimes the above cited can fall into one or both categories of FMLA violations by an employer. If an employer does not allow you to take FMLA leave while you are qualified that could constitute Interference. While if the employer fires you for taking FMLA leave, than that would most likely be Retaliation, however could also be Interference if the firing was also to stop you from continuing to take FMLA leave.

How do I apply for FMLA?

      If you meet the above criteria or think you meet the criteria you should go to your Human Resources person or person acting as Human Resources and request FMLA paperwork. They will more than likely give you what is called a “Certification” form which you must bring to the health care provider providing service for the qualified individual and have them fill out and return to HR.

An employee does NOT need to request FMLA leave by terms, only the basis for the leave and that time away is necessary.  Notification can be in writing or verbal, but for the employee’s protection, always ask in writing using email even if just confirming with the employer. 

      Every employer who required to offer FMLA protection and becomes aware of an employee missing time from work due to a covered event must OFFER THE EMPLOYEE FMLA PROTECTION within 5 DAYS OF knowledge of this covered event, or of the employee missing time from work due to an illness or condition that prohibits the employee from working.  The Employer must designate the leave as unpaid or paid time offer. 

An employee can be required by the employer to provide specific details and information about your qualifying medical condition or that of your family member.  However, an employee is not required to discuss the exact diagnosis or treatment options.


If an employee is hospitalized on an emergency basis, and unable to notify the employer in advance, such unforeseen circumstances would typically be protected under the FMLA.  The Employee must notify the employer as soon as practicable, within one to 2 business days. 

Q:  what if I am unable to communicate while in a hospital such as in a coma or in ICU?  In such situations, an employee would not be required to then notify the employer until he or she is physically able to do so.  Moreover, an employer cannot terminate an employee or deny FMLA protection because the employee did not fill out necessary forms mailed to the employee’s home while the employer knows that the employee is in the hospital. 

How an Employee can use the total 12 weeks of leave.

The employee can use the 12 weeks consecutively or intermittently a few days or weeks not consecutive that when totaled do not exceed 12 weeks in any 12 month period of time.


An employer cannot force an employee to use a full day of FMLA, and must not force an employee to use more FMLA leave than necessary to address the circumstances that precipitated the need for the leave.

Remember that FMLA leave is UNPAID!

      Please remember that FMLA leave is usually unpaid leave.  If you are an hourly employee and take 10 hours in a given week off to take care of yourself typically you will not be paid for that time off unless you have PTO, sick time or vacation time.  However, each employee who is going to be out for a long period of time or the full 12 weeks should seek to utilize the company short term disability benefits, or if related to a work accident, workers’ compensation disability benefits.

How does en employer violate the FMLA?

a) refusing to restore an employee to his or her former position if available or to an equivalent position after FMLA leave, or purposefully refusing to do so solely because the employee was missing time from work or exercising his or her rights under the FMLA.

b) Discharging, suspending, demoting or disciplining an employee because of the FMLA absence.

c) Failure or refusal to allow the employee to use time off under the protection of FMLA.

d) Termination of an employee eligible for FMLA leave as of the date needed (example, an employee who is to give birth on January 15, and would have met the requisite work hours as of January 1, but is terminated on December 31 to avoid the FMLA protection).

e) an employer that retaliates by giving an employee a false write up, a poor annual review, or otherwise subjects the employee to discipline over performance issues which other employees are not disciplined for

f) any form or harassment,  retaliation which causes the employee loss of income or loss of promotional opportunities for complaining about FMLA violations, telling other employees about FMLA rights, or you seeking to exercise your rights under the FMLA. 

g) Any action by the employer to interfere or prevent you from the projections of the FMLA.

h) Any coercive behavior, threats, or intimidation to discourage an employee from taking leave or seeking FMLA protection.

What should I do if I am being retaliated against, interfered with or was fired after taking FMLA?

      You should immediately seek legal opinion from a trusted, proven, experienced attorney who works primarily in labor and employment law. At Feldman Morgado, PA we have trusted attorneys who know the intricacies of the FMLA and its protections. We also work predominantly on a contingency fee, meaning we do not get paid, if you do not get paid because we know in a time when you are out of work it would be impossible to pay an hourly rate.

Basic information is also available at the Department of Labor Website:  Also, DOL published fact sheets are included herein as pdf exhibits.

There is no requirement that the retaliation by the Employer be job related to be subject to violation of the FMLA.  The U.S. Supreme Court in Burlington N & S.F. Ry. V. White, 126 S.Ct 2405 (2006) held that relation need not be job-related to be actionable under TITLE VII. 

What is an equivalent position?

If I lose my job and the employer violated the FMLA, what are my remedies?

An employee who loses his or her job due to missing time from work where the employer has violated the FMLA is eligible for the following damages as per 29 U.S.C. Section 2617a(1):

a) Back pay:  2 years unless 3 years for willful violations (Sections 2617c(1) and (2);  See Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 740 (2003),

b) Reinstatement,

c) Or front pay in lieu of reinstatement,

d) Plus pre-judgment interest

e) The value of employee benefits lost. 

e) An employee also may recover liquidated damages:  an equal sum the actual damages incurred as a penalty to the employer;

f) Plus the employer must pay the employee’s attorney’s fees and expenses of litigation.

      If you have any issues with what is laid out above please call our offices for a consultation.


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