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Family and Medical Leave Act (“FMLA”): Overview of Employee Rights and Responsibilities

above-the-bar-logo-no12.jpgThe Family & Medical Leave Act protects eligible employees for up to 12 weeks per year from losing their jobs (or comparable jobs) as well as their health insurance benefits. The Act applies to all public agencies, public and private elementary and secondary schools and companies with 50 or more employees. Under the FMLA, an employee can take up to 12 weeks* of unpaid leave each year for any of the following reason:

  • To give birth and care for a newborn;
  • For placement with the employee of a child for adoption or foster care;
  • To care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • For medical leave when the employee is unable to work because of a serious health condition.

Under the FMLA, a “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider.” The FMLA allows the employer to ask for certification that the employee has a serious health condition. Upon return to work, the employee is entitled to return to the same position or to an equivalent position.

In order to be eligible to take time off under the FMLA, an employee must

  • Have worked for that employer for at least 12 months; and
  • Have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and
  • Work at a location where at least 50 employees are employed or within 75 miles of the location.

An employee wishing to take foreseeable time off under the FMLA should notify the employer at least 30 days in advance that he or she needs time off. If the leave is not foreseeable, the employee can provide notice “as soon as practicable” which means at least verbal notice to the employer within 1 or 2 business days of learning of the need to take time off.

As the elder population increases and the number of households with both adults working grows, the FMLA provides a great benefit. However, employees such as pregnant women, employees with young children or aging parents, and sick spouses, taking time off under the FMLA are easy targets for employment discrimination. About 70% of American children live in households with both adults working and about 1 in 4 Americans, a number which is rising, care for an elder. In fact, the number of cases related to family responsibilities discrimination filed as of 2010 has increased 400% in the last decade and the average verdict is now over $500,000.

New revisions affecting the FMLA went into effect last year concerning military family leave. The amendment grants an eligible employee such a as spouse, son, daughter, parent, or next of kin of a covered service member up to a total of 26 work weeks of unpaid leave during a 12 month period to provide care to the service member for a serious injury or illness. In addition, many states such as New Jersey have state FMLA statutes which can include paid family leave.

The FMLA makes it illegal for an employer to discriminate, discharge, or harass any employee for exercising his or her rights under the FMLA. If you, your friends or family members have faced employment discrimination for taking time off under the FMLA, please contact our experienced attorneys at Villanueva & Sanchala. Call us now at (800) 893-9645 for a free initial telephone consultation.

Web Sources:
Fact Sheet #28, U.S. Department of Labor Fact Sheet #28A, U.S. Department of Labor Family Responsibilities Discrimination: Litigation Update 2010,
Center for Worklife Law at the University of California

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Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.