Category: FMLA

The Family and Medical Leave Act (FMLA) is an important law that protects workers and their jobs should they need to take time off to care for a family member or for personal health issues. Even though this law protects employees, not all employers understand it, and either mistakenly (or purposely) violate it.

When can I take leave for under FMLA?

In order to be eligible for FMLA leave you must work for an employer that has at least 50 employees, work for your employer for at least one year and work for at least 1,250 hours in the year leading up to the leave. If you meet these qualifications, you are entitled to up to 12 weeks of leave per year for FMLA-qualifying reasons. Employees requesting FMLA leave can do so for the following reasons:

• Your own serious health condition
• Serious health condition of an immediate family member
• Foster care placement, birth, or adoption of a child (for both mothers and fathers)
• Serious injury or health issue of a family member caused by military service
• Exigencies that qualify and arise from a family member’s deployment in the military

How employers get into trouble with FMLA

The main issue is that employers often misinterpret the law, to the point where they incorrectly deny an employee’s request for leave through FMLA. This most often occurs when the employer fails to recognize what a serious medical condition is. For example, FMLA does not cover minor health issues, such as a cold – but if complications arise from a cold, like bronchitis or pneumonia, these would be serious enough conditions to grant leave under FMLA. On the other hand, conditions that require overnight hospitalization or repeated doctor’s visits are usually covered.

Another common violation of FMLA made by employers is disciplining employees who take excessive leaves. There are companies operating today that have no-fault absence policies in place. These policies count every single absence of an employee against them, no matter why the employee took them. Under these policies, an employee is disciplined when he or she records a set number of absences. Any absence that qualified under FMLA cannot be held against an employee. This often occurs because the employer fails to ask for a reason why the employee is absent, and therefore doesn’t know it was due to FMLA-approved leave.

Common employer FMLA violations

Below is a list of the most common employer FMLA violations that our FMLA attorneys deal with on a regular basis:

• Denying eligible employees their requested leave
• Asking employees who are on leave to perform work
• Failing to notify employees of their FMLA rights
• Changing a returning employee’s job duties or title
• Terminating an employee who is on FMLA leave
• Counting leave approved under FMLA as excessive absences
• Failing to continue the employer-provided health coverage for the employee on leave
• Pressuring employees on leave to return early
• Postponing the reinstatement of the employee from leave
• Misclassifying the employee returning from leave
• Failing to reinstate the benefits of the employee returning from leave
• Asking employees to provide too much notice of FMLA leave
• Failing to recognize the notice given by the employee seeking leave under FMLA
• Requiring a fitness-for-duty certification upon return from leave without prior notice
• Requesting an employee provide health information beyond the FMLA-qualifying condition
• Failing to provide required paperwork to an employee seeking FMLA leave or returning from FMLA leave

Do you believe that your employer has violated FMLA by denying you time off to care for yourself or for a loved one in Tennessee? If so, it’s in your best interest to speak with an experienced FMLA attorney from The Gilbert Firm immediately. Call Jonathan Bobbitt, Justin Gilbert, or any of our Tennessee employment attorneys at 888-996-9731 today to schedule a consultation or contact us today.

If your employer has interfered with your right take leave according to the provisions of the Family Medical Leave Act (FMLA) or if the employer has retaliated against you for taking FMLA, you may sue your employer to collect monetary damages and force their compliance with the law. There are various damages you may recover if your FMLA case is successful.

What does the FMLA provide?

Employers with a minimum of 50 employees with a 75-mile radius of the worksite are required under the FMLA to provide eligible employees with a maximum of 12 weeks of unpaid (or in some cases paid) leave under specific circumstances. These include, but are not limited to:

• For the Employee’s own serious medical conditions;
• For the Employee’s family members’ serious medical conditions;
• To handle certain situations that occur when a child, spouse, or parent is on active military duty; and
• To bond with a newborn baby or newly adopted child.

In order to qualify for leave under the FMLA, you must have worked for your employer for at least 12 months, must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave and, again, work for an employer who employs 50 or more employees within a 75-mile radius of the worksite.

As an employee in need of FMLA protection, you must also give notice to your employer that you need leave for a qualifying reason that may otherwise qualify you for FMLA coverage.

If you qualify for leave under the FMLA and/or in fact take leave under the FMLA, you are afforded certain protections from adverse employment actions that the employer may take against you. If such an action is taken, you may have a case against your employer. Just some of the examples of those adverse actions are:

• Refusing your rightful and qualifying request for leave;
• Failure to provide you with notice of your eligibility for FMLA leave;
• Refusing to allow you to return to your previous position at the end of your leave;
• Interfering with your leave request in some other way; and
• Taking a retaliatory action against you for your leave request or actual leave.

Monetary damages available

If your FMLA case is successful, you will be entitled to recover monetary damages based on specific losses and injuries incurred on account of your employer’s actions. You may be eligible to receive lost wages (including back pay and potential front pay), reinstatement, liquidated damages (depending on the nature of the employer’s actions) and attorneys’ fees and expenses.

If your employer has taken what you believe to be an adverse action against you because of your request for, or taking of, Family Medical Leave Act (FMLA), our team at the Gilbert Firm provide you with the legal advocacy you need to have your rights restored. With offices in Chattanooga, Memphis, Nashville, Knoxville, and Jackson, we are ready to fight for your right to recover the damages your owed. To set up a free case review with an experienced employment lawyer like Jonathan Bobbitt, call us today at 888.996.9731, or complete our contact form.

The Family and Medical Leave Act (FMLA) was developed so that workers could take needed time to attend to their own medical needs, care for newborns, nurse ailing parents, or assist other direct family members during illnesses for up to three months, while maintaining their own health benefits and employment position. Ethically, it is indubitably a sound legal precedent. Fiscally, however, it is often seen as unfairly burdening to employers. Some businesses go so far as to deny or endeavor to avoid following through on their legal obligations.

The first critical point of the FMLA is that it only applies to businesses that employ at least 50 employees within 75 miles (Public Agencies have no minimum employee requirement). Additionally, the only employees who are eligible to take advantage of the FMLA are those who have been with the employer for 12 consecutive months and have worked at least 1,250 hours during the last calendar year (special rules exist for Airline Flight Crew Employees).  Often, violations by employers center on disputes about employees’ eligibility, or requests for employees to perform any type of work while on leave.

FMLA violations are discouragingly prevalent

FMLA provides job protection for certain classes of employees for up to 12 weeks of unpaid leave whether that leave be continuous or intermittent. Employers may violate the FMLA by interfering with leave or retaliating against an employee for exercising the right to leave. The most common types of violations that we see include:

• Neglecting to follow through on posting, delivering, or returning FMLA paperwork that could indicate whether an employee is eligible or has been approved for FMLA.
• Denying coverage for a complication to a minor ailment, such pneumonia, for any issue requiring an overnight hospitalization, or for any issue that requires ongoing treatment.
• Rejecting an FMLA claim based on lack of complete medical certification, rather than informing the employee of what else is needed.
• Requiring, requesting, suggesting, or in any way making it seem like an employee on FMLA must continue to perform work in any capacity.
• Giving returning employees a lesser position, failing to maintain the employee’s health benefits in his or her absence, or denying any other benefit accrued during the leave period.
• Assessing FMLA absences towards disciplinary action. FMLA leave cannot be counted against bonuses for attendance either.
• Firing an employee who is unable to return to work after FMLA. The law requires that reasonable accommodations must be explored under the Americans with Disabilities Act.
• Firing an employee based upon the employees request for, or actual use of, FMLA protected leave.

Employers should be mindful of the benefits the FMLA provides to its workforce and must be challenged when violating those rights. The Gilbert Firm provides thorough counsel to employees who have been denied or had their FMLA rights violated. To speak with a skilled Tennessee employment lawyer like Jonathan Bobbitt or Justin Gilbert, please call 888.996.9731, or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

Ah, the FMLA—and all those dang forms.  Many times, the battle of the forms concerns granting the leave.  But, as the Firing Squad addresses here, it may also involve a battle to return to work after a leave is granted.

Let’s say an employee, “Mike,” asks for three weeks of FMLA to get a knee replacement.  Mike’s employer, “World’s Best Sausages,” (WBS) requires Mike’s doctor to submit an FMLA certification detailing the nature of Mike’s leave and the anticipated ending date.  Mike’s doctor completes this certification within fifteen (15) days, giving both a beginning and ending date.  WBS then grants the three week FMLA leave.  So far, so good, right?

At the end of the three weeks, right on time, Mike shows up at work, ready to go with his new knee.  But instead of running the sausage pump, his employer says, “Um, Mike, where’s your doctor’s clearance?”  (Sometimes called a Fitness For Duty form or a Return to Work slip).

Mike doesn’t have one.  Why would he?  He returned on the exact date specified on the medical certification. At this point, can WBS insist Mike get a clearance from his doctor?  Worse yet, can it fire him for not already having one?

Well, it depends upon what WBS said in its own forms.  Often, an employer forgets that it, too, has very detailed notice obligations.  This includes posting FMLA rights in conspicuous places, as well as putting FMLA rights and obligations in the company handbook. 29 C.F.R. §825.300(a).  And, once an employer receives notice of a potential FMLA leave, the employer must provide a written notice detailing the expectations and obligations of the employee. 29 C.F.R. §825.300(c).  This is the eligibility notice.  Finally, if the employer grants the leave, it must do so in writing and tell the employee, among other things, whether a fitness for duty certification is required to return to work. 29 C.F.R. §825.300(d).  This is the designation notice.

So, back to the designation form we go.  Did WBS check the box telling Mike that he must present a fitness for duty form before returning to work?  If so, WBS can require him to return to his doctor before coming back to work.  And, though it would be sinister indeed, WBS might even be within its rights to terminate Mike for not having such form already.  By contrast, if WBS failed to notify Mike of this obligation, it may not fire him for not doing so already.

Note:  This example concerns a continuous FMLA leave.  Stricter rules apply to the employer where the employee is coming back from an intermittent leave, as opposed to a continuous leave. 29 C.F.R. 825.312(f).