The Family Medical Leave Act (FMLA) provides employees with a means to balance work with family and health-related responsibilities by allowing up to 12 weeks of unpaid leave per year. FMLA is also designed to safeguard qualifying employees who return from a leave of absence by requiring that they are restored to their original or equivalent terms of employment, including pay and benefits.
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As a federal program, FMLA applies to all public agencies, public and private elementary and secondary schools, and companies with 50 or more employees. Employees that are eligible for FMLA leave may take up to 12 weeks of unpaid leave every year for any of the following reasons:
- the birth and care of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;
- to care for a spouse, son, daughter, or parent who has a serious health condition;
- for a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
- for any qualifying exigency that arises from a spouse, son, daughter, or parent being a military member on covered active duty or call to covered active duty status.
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Employees generally must submit notice of their request for FMLA leave 30 days in advance when the need is foreseeable. Otherwise, employees should request the leave from their employer as soon as possible and practical under the circumstances. When an employee requests leave for their own or a covered family member’s medical condition, their employer may require certification in favor of the leave by a healthcare provider.
It is unlawful for an employer to retaliate or discriminate against an employee in response to a rightful exercise to take medical leave as granted by the FMLA. Retaliatory or discriminatory action as barred by EEO laws could mean interfering with, restricting, or denying an employee’s FMLA leave taken in good faith. In addition, firing or harassing an employee after they have just returned from FMLA leave could also qualify for retaliation, depending on state law and the individual case.*
An employer’s attempt to interfere with an employee’s rightful FMLA leave, or acting adversely towards the employee (firing, harassment) for taking the FMLA leave in good faith, could be considered retaliation, depending on state laws and the individual case.
If you believe you have been the target of workers’ compensation retaliation, it is best to consult with an attorney to determine what the time limit for your claim would be, what protections apply to you, and if you have been illegally discriminated against.