The Family & Medical Leave Act (FMLA) was passed in 1993 to give employees a way to take job-protected leave to attend to their own health issues or caretaking obligations for family members.
Protections Under FMLA
FMLA applies to employers with at least 50 employees. Employees who are eligible for leave must have worked for at least one year and at least 1,250 hours during the previous year at a location that has at least 50 employees within a 75-mile radius.
Minor conditions such as colds, headaches, earaches, routine dental care, and elective cosmetic treatments do not qualify for leave. Only serious illnesses are eligible for FMLA leave. Eligible conditions include:
- Inpatient care at a hospital, hospital, or residential care facility
- Incapacity for more than three consecutive days with continuing treatment by a health care provider
- Pregnancy or prenatal care
- The birth, adoption, or foster care placement of a child
- Chronic serious health conditions such as diabetes, epilepsy, and asthma
- Permanent or long-term incapacity, such as Alzheimer’s disease or terminal cancer
- Certain conditions requiring multiple treatments, such as the need for dialysis
- Emergencies arising out of a family member's military deployment
- A family member's serious injury or illness related to their military service
In most cases, FMLA gives employees the right to 12 workweeks of leave in a 12-month period. However, if the leave is to care for a spouse, son, daughter, parent, or next of kin who is a service member with a serious injury or illness, there is a maximum of 26 workweeks of leave in a 12-month period.
Violations of Your Family & Medical Leave Act Rights
Violations of FMLA can take many forms. Some of the most common include:
- Failing to recognize serious health conditions. FMLA doesn’t cover minor ailments, but these ailments are covered if they turn into more serious issues. For example, the common cold is not covered under FMLA—but an employee would be covered if they developed bronchitis or pneumonia.
- Failing to inform employees of their rights and obligations. Employers are required to provide information to employees to explain how FMLA works.
- Disciplining or firing an employee for taking FMLA leave. Firing due to FMLA is rare, but employers often attempt to give poor performance reviews due to absences or uncompleted work during an employee’s FMLA leave.
- Pressuring employees on leave. Employers are allowed to ask for periodic status updates, but they are not allowed to regularly contact employees to interfere with their leave or pressure them to return sooner than planned.
- Cutting off benefits. Employers can’t cut off benefits like health insurance prematurely. If an employee is more than 30 days late in paying for insurance, their employer must give them written notice and 15 days to make the payment before discontinuing the coverage.
- Postponing reinstatement of an employee returning from FMLA leave. Employees must be reinstated after giving two days’ notice to their employer. The employer can’t wait for a position to open up or for schedules to shift.
- Reinstating an employee to a lesser position. If an employee’s previous job is unavailable, they must be given an equivalent position with the same pay, benefits, duties, shift, schedule, and worksite.
- Neglecting to reinstate benefits. Employees returning from leave can’t be asked to wait for open enrollment or take a physical.
- Misclassifying professionals as key employees. A key employee is among the highest-paid 10% of employees within 75 miles and doesn’t have to be reinstated if it would cause substantial or grievous injury to the employer.
How We Can Help
We understand the importance of family and medical leave for employees. Our attorneys truly care about correcting the negative consequences of your employer’s actions. We also have extensive experience defending various employment rights, including family and medical leave.
We represent clients on a contingency fee basis, which means there is no upfront cost associated with protecting your legal rights. We serve clients throughout New York, including those who live and work in Manhattan, Brooklyn, Queens, Bronx, Staten Island, Westchester County, and Nassau County.
Please complete our contact form or call us at (212) 601-2728 to schedule a free and confidential consultation to discuss your case. We also encourage you to download our free e-book, The New Yorker’s Guide to Wrongful Termination and Retaliation, to learn more about your rights.