Family and Medical Leave Act (FMLA)

Under the FMLA, employees of companies that employ 50 or more employees are eligible to take up to 12 weeks of medical leave in a one-year period, if they have been employed for at least 12 months and have worked at least 1,250 hours during the preceding 12-month period. The reasons for medical leave can include the birth or adoption of a child, caring for a spouse, parent, or minor child who cannot care for him or herself, or for a serious health condition that makes the employee unable to perform the essential functions of the job with or without reasonable accommodation. The leave of absence can be unpaid. The FMLA has different methods of calculating the one-year period and requires the employer to have an FMLA policy.

The FMLA prohibits interference with an employee's rights under the law, and with legal proceedings or inquiries relating to an employee's rights. More specifically, the law contains the following employee protections:

• An employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the Act.
  
• 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 Act.
  
• 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, or has instituted (or caused to be instituted) any proceeding under or related to this Act;
    
  • Given, or is about to give, any information in connection with an inquiry or proceeding relating to a right under this Act;
    
  • Testified, or is about to testify, in any inquiry or proceeding relating to a right under this Act.

Any violations of the Act or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act. It would also include manipulation by a covered employer to avoid responsibilities under FMLA, for example:

• transferring employees from one worksite to another for the purpose of reducing worksites, or to keep worksites, below the 50-employee threshold for employee eligibility under the Act;
  
• changing the essential functions of the job in order to preclude the taking of leave;
  
• reducing hours available to work in order to avoid employee eligibility.
  

An employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave and employees cannot waive, nor may employers induce employees to waive, their rights under FMLA.
Individuals, and not merely employees, are protected from retaliation for opposing any practice which is unlawful under the Act. They are similarly protected if they oppose any practice which they reasonably believe to be a violation of the Act or regulations.

Our firm has extensive experience in evaluating particular FMLA situations, determining FMLA eligibility, and handling FMLA lawsuits.