Jaburg Wilk


Three Important Components of the Family Medical Leave Act

Categories: Employment, Article

Family Medical Leave Act

In 1993, President Bill Clinton signed the Family and Medical Leave Act ("FMLA"), which allows employees time off from their job to bond with their children, care for ill family members, or recover from their own serious health problems — all without fear of losing their job.   The FMLA entitles employees to a total of 12 weeks of unpaid leave during a 12-month period for any of the following: 

  • the birth of a child and to care for the child after birth; 
  • the placement of a child with the employee for adoption or foster care;
  • to care for the spouse, child, or parent of the employee who has a serious health condition;
  • the employee's own serious health condition; and 
  • a "qualifying military exigency."  For a detailed description of the types of activities that constitute a "qualifying military exigency," see the Department of Labor's FAQ on the military leave provisions of the FMLA.

Upon return from leave, an employee must be restored to either their same position or an equivalent position. An equivalent position is a position that has equivalent benefits, pay, and other terms and conditions of employment. The obligation to restore the returning employee to their same or an equivalent position is FMLA's lynchpin. 

To qualify for FMLA leave, the employee must have worked at least 1,250 hours for the employer during the previous 12 months. The employee must also work for a state or federal agency or a private sector employer that employ 50 or more employees within a 75 mile radius of the location where the employee works. 

FMLA Claims

FMLA recognizes two types of legal claims: 

  1. Interference claims, in which employers burden or outright deny an employee their FMLA rights, and 
  2. Retaliation claims, in which employers retaliate against employees for having exercised their FMLA rights. 

To establish an interference claim, an employee need only prove that they made an appropriate request for FMLA leave and that their request was denied or the employer failed to restore them to the same or an equivalent position upon their return.  An employee does not need to prove that the employer acted intentionally or recklessly in interfering with their rights, just that their employer denied them their FMLA rights.  

To prevail on a retaliation claim, an employee must prove that they exercised their FMLA rights and that they suffered an adverse employment action because they did. An adverse employment action is any action that is reasonably likely to deter employees from exercising their rights. If an employer can prove that it terminated or demoted that employee for some other non-discriminatory reason such as poor performance, then the employer will not be held liable.  

Retaliation for taking family medical leave

An employee who was retaliated against because they took time off to recover from an injury or illness may also have a claim under the Americans with Disabilities Act, as amended ("ADA"). The ADA prohibits any employer, with 15 or more employees, from discriminating against an employee because of a disability.  The ADA also applies to any employee that has a record of any such impairment or is regarded as having such impairment.  A disability is defined very broadly as any physical or mental impairment that substantially limits any life activity. Some courts have found that depression, diabetes, and temporary back/neck injuries are disabilities because they prevent the employee from doing such things as walking, thinking, or sleeping properly. Employers have an obligation under the ADA to provide a reasonable accommodation for any employee with a disability.  This may require the employer to grant the employee an extended leave of absence beyond the 12 weeks FMLA leave and/or to allow the employee to work from home.   

Employers face serious consequences if they fail to honor their obligations under FMLA and ADA. Under the FMLA, an employee may recover double the amount of their lost wages. An employee may also recover the value of any benefits they lost as a result of losing their job or being demoted – this includes the increased cost of any surgery or medication as a result of the employee no longer being covered under the employer's health plan. An employee is also entitled to a mandatory award of attorney fees. An employee may not, however, recover any punitive damages. The ADA allows an employee to recover lost wages, damages for emotional distress, punitive damages, and attorney fees.

We help employers comply with both the FMLA and the ADA to help avoid costly lawsuits.   Conversely, we assist employees whose rights may have been violated under the FMLA or the ADA.

About the authors: Kraig J. Marton heads the employment law department at the Phoenix law firm of Jaburg & Wilk.  He assists employers and employees in complying with the many laws affecting employers.  Jeffrey E. Silence is an attorney at Jaburg Wilk. He focuses his practice in employment law.