Family and Medical Leave Act (FMLA)

The FMLA permits eligible employees to take up to 12 weeks of unpaid leave from work in any 12-month period to care for themselves or family members.  The FMLA applies to private employers that have at least 50 employees with 75 miles of the worksite and to most federal and all state and local governments and agencies, regardless of size.

An employee is “eligible” for FMLA leave if he or she 1) has been employed by the employer for at least 12 months (not necessarily consecutive); 2) has worked for the employer at least 1,250 hours during the previous 12 months; and 3) is employed at a worksite with at least 50 employees at that location or within a 75-mile radius.

An eligible employee is entitled to FMLA for the following reasons:

·        because of a serious health condition that makes the employee unable to work;

·        to care for the employee’s spouse, child, or parent who has a serious health condition; or

·        to care for the employee’s newborn child or a newly placed adopted or foster child.

If foreseeable, the employee should give the employer 30 days notice of the need for FMLA leave.  If the need is not foreseeable, then the employee must give notice of need for FMLA leave as soon as practicable.  The employee must provide sufficient information for the employer to understand that the requested leave qualifies under the FMLA, although the employee does not have to mention the statute by name.  Merely calling in sick is not sufficient.  For a serious health condition, the employer may require the employee to complete a medical certification but may not request medical records or contact the employee’s doctor for more information.

An employee may take FMLA leave on a full-time, part-time, or intermittent basis.  With few exceptions, the Family and Medical Leave Act gives employees the right to be restored to the same or an equivalent position upon his/her return, the right to continued health benefits during leave, and the right not to be discriminated against for taking leave.

Representative Cases

Our firm has handled numerous cases involving a variety of FMLA issues.  Generally, privacy concerns and confidentiality provisions in settlement agreements prohibit us from identifying cases, named parties, and the existence and terms of settlement agreements.  What follows are some examples of cases we have litigated and/or negotiated to a favorable resolution.

Retaliation after requesting FMLA leave:  Our client, the plaintiff, was terminated after she took an FMLA leave and after she had complained of sexual harassment.  The court ruled that the employee was on FMLA leave, where the employer terminated the employee before her FMLA certification form was due.  Shortly before trial, the district court judge entered a consent decree requiring the employer to pay our client $400,000 in compensatory damages, back pay, and attorney’s fees.  No. 03 C 6576, U.S. District Court, Northern District of Illinois. 

Termination after requesting FMLA leave:  Our client took time off work for major surgery, but was not informed of her right to FMLA leave.  Upon her return to work, her supervisor told her that she would be fired if she missed one more day of work.  The client subsequently developed serious complications related to her surgery.  She consulted with HR, learned that she was entitled to FMLA leave, and requested FMLA leave for the post-surgery complications.  The employer terminated her the next day.

Termination after taking FMLA leave:  Our client, a high performing sales representative, was the oldest among his peers.  Due to adverse and discriminatory treatment at work, he suffered severe stress that required FMLA leave.  Instead of reinstating him to his position at the end of his leave, the employer terminated him.

If you have concerns about FMLA leave, feel free to contact us.