Family and Medical Leave Act

Employee Rights under the FMLA

The Family and Medical Leave Act

The Family and Medical Leave Act (“FMLA”), 28 U.S.C. § 2601, is a Federal law enacted in 1993 that entitles eligible employees of covered employers to take unpaid, job-protected leave of up to 12 weeks for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

The FMLA provides for up to 12 weeks of unpaid leave for certain medical situations for either the employee or a member of the employee’s immediate family; however, in many instances paid leave may be substituted for unpaid FMLA leave.

Employer Coverage

The FMLA applies to all public agencies, including state, local, and federal employers, and private sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers. Consequently, in the private sector, if the employer employs less than 50 employees, the FMLA likely does not apply.

Eligible Employees

Assuming the FMLA applies to the employer, an employee is eligible for the FLMA if the employee has been employed (i) for at least 12 months by the employer; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.

Circumstances that Allow an Eligible Employee to take FMLA Leave

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12-month period for one or more of the following reasons:

  • for the birth of a child;
  • to bond with a newborn child (applies to men as well as women);
  • for the placement with the employee of a child for adoption or foster care, and to bond with that child;
  • to care for an immediate family member (spouse, child, or parent but not “in-laws”) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition;

The FMLA contains additional protections for spouses, children, and parents of members of the National Guard, Reserves, or Regular Armed Forces, which are omitted here.

Protection for Individuals under the FMLA

The FMLA prohibits retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA. The FMLA and its accompanying regulations prohibit employers from:

  • Interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right;
  • Discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right;
  • 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;
  • 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.

Unpaid Leave Permitted

Generally, leave granted under the FMLA may be unpaid. However, an employer may voluntarily provide for paid leave in an employment contract or employee handbook.

Enforcement of the FMLA

An employee whose rights under the FMLA have been violated has the choice of:

  • Filing a complaint with the Secretary of Labor, or
  • Filing a private lawsuit.

If the employee files a private lawsuit, it must be filed within two years after the last action which the employee contends was in violation of the FMLA, or three years if the violation was willful.

Damages for FMLA Violations

If an employer has violated one or more provisions of FMLA, an employee may receive one or more of the following:

  • wages, employment benefits, or other compensation denied or lost to such employee by reason of the FMLA violation; or
  • where no such tangible loss has occurred, such as when FMLA leave was unlawfully denied, any actual monetary loss sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages for the employee.
  • an additional amount equaling the preceding sums as liquidated damages unless the FMLA violation was in good faith and the employer had reasonable grounds for believing the employer had not violated the Act.
  • When appropriate, the employee may also obtain appropriate equitable relief, such as employment, reinstatement, and promotion.
  • When the employer is found in violation, the employee may also recover attorney’s fee and other costs of filing a lawsuit from the employer in addition to any judgment awarded by the court.

The FMLA’s Shortcomings

Due to the clause stipulating a minimum number of employees (50) and a minimum number of hours worked (1,250), it has been estimated that only about 46% of private sector workers are covered under the FMLA. See Han, W.-J. & Waldfogel, J., Parental Leave: The Impact of Recent Legislation on Parents’ Leave-Taking, Demography 40(1), 191, 191 (2003).

Moreover, in 2005, the last year data is available, only 8% to 17% of covered eligible workers (between 6.1 million and 13.0 million workers) took FMLA leave.

Go to top