Family & Medical Leave Act (FMLA)

If you work for an employer with 50 or more employees, the FMLA may allow you to take unpaid leave to attend to family and medical responsibilities. In order to be eligible for FMLA leave, you must have worked for your employer: for at least 12 months; and have worked a minimum of 1250 hours during the 12 months preceding your requested leave.

If you are eligible, you are entitled to up to 12 weeks unpaid leave (within a 12 month period). Family and medical responsibilities can include births, illnesses, or other serious health conditions of yours (if it leaves you unable to perform the functions of your job) or of a family member. Serious illness does not include things like a cold or flu; outpatient surgery; elective or cosmetic surgery; routine dental or orthodontia appointments or work; minor infections.

During an FMLA absence, with few exceptions (for certain “key” employees) your employer must maintain your health coverage, and may not terminate your employment. Your employer may not penalize you or harass you for requesting or taking leave under the FMLA or place undue burdens on your return to work. When you return to work, you are entitled to your old job (so long as you are medically able to perform it), or if it is not open, to reasonably comparable work.

How do I know if my employer is violating the FMLA?

Violations under the FMLA tend to fall into four categories: improper denial of leave; undue burden on returning to work; failure to allow you to return to equivalent work; and discrimination/harassment for exercising your rights under FMLA. While each case is dependent on its facts, consider the following situations in which an employer may be violating FMLA:

  • After an absence for a serious illness from which your doctor states you have recovered, your employer won’t let you return to work unless you submit to a detailed physical examination with a physician of your employer’s choice.
  • Because of a back condition, you become addicted to prescription pain pills. Your doctor believes it’s medically necessary for you to enter rehab for three weeks. Your employer denies your request for leave because your addiction was “your own fault.”
  • You and your wife work for the same employer; she has just given birth after a difficult pregnancy and is on eight weeks FMLA leave; you ask for two weeks off at the beginning of her leave to help care for her and your newborn child. Your employer denies your request.
  • After your FMLA leave, your employer retains your job title as account manager, but gives you only administrative tasks.
  • You return to your old job after FMLA leave and, a few months later, after having received stellar reviews for your entire job tenure, your supervisor gives you a negative review and denies you a raise and promotion, stating you are not a team player and the company’s success is not your priority.

I think my employer has violated the FMLA. How can I find a New York attorney to work this out for me?

  • Act quickly–you have a limited time to file a complaint for FMLA violations.
  • Gather any documents relevant to your FMLA claim, including your employee manual, doctor’s notes/reports and employer communications regarding your FMLA request and/or leave.
  • Consult an experienced employment layer; you’re initial FMLA consultation is free.

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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