Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) allows qualified employees to take up to 12 weeks of unpaid leave in order to recover from medical illness or to attend to close family members who may be suffering from illness. The FMLA requires that employers reinstate employees to the same or equivalent position as they held prior to taking leave.

It is illegal for an employer to discriminate against employees for taking
leave under FMLA by retaliating against them. The employer is also not allowed to view an employee’s FMLA leave as a negative factor when assessing employee performance. The FMLA, however, does not require the employer make special accommodations for an employee who takes leave under FMLA.

Employees who Qualify under the Act

In order for an employee to be covered by the FMLA, his employer must employ at least 50 employees within 75 miles from the worksite. Employers who employ less than 50 employees either at the worksite or within a 75- mile radius from the worksite are excluded from liability under the FLMA. Also, an employee must have worked for his employer for at least 12 months and worked at least 1,250 hours in order to take FMLA leave. The 12 months worked for the employer do not have to be consecutive.

An employee may request leave under FMLA for the following reasons:
• birth or adoption of a child, or placement of a foster child,
• care of a spouse, child, or parent who has a serious health condition, or
• a serious health condition that makes the employee herself unable to
perform the functions of her employment position
The FMLA does not extend to the care of an employee’s in-laws or siblings.

Requesting Leave

When an employee’s leave is foreseeable, either for birth or adoption of a
child or for planned medical treatment, she must provide the employer with
thirty days advance notice (or as much as practical under the circumstances
of the need for leave). Furthermore, when the employee requests leave for
a serious health condition (whether his own or that of a family member),
the employee may be required to provide a certificate issued by a physician
stating the date in which the condition began, its probable duration, and
other necessary facts.


FMLA leave is generally unpaid. If the employer provides an employee with
paid sick/medical leave, the employee is permitted to substitute unpaid
FMLA leave for the sick/medical leave to the extent that the circumstances
meet the employer’s requirements for the use of the paid leave. An
employer is not required to allow a substitution of paid medical leave in any
circumstance where it would not normally grant paid leave. An employee,
thus, is not permitted to substitute paid medical leave if she has a serious
medical condition that not covered under the employer’s leave plan.
Additionally, an employee would only have the right to substitute paid
medical leave to care for a seriously ill family member when the employer’s
benefit plan allowed paid leave for that purpose.

Elements of a Claim Under the FMLA

In order to assert a claim under the FMLA, the plaintiff must allege the
1) he availed himself of a right protected under the FMLA;
2) he was adversely affected by an employment decision; and
3) there is a causal connection between the employee’s assertion of the
protected right and the employer’s adverse employment action.

Employer Response

Once the plaintiff has alleged a claim under the FMLA, the burden of proof
shifts to the employer. To meet its burden, the employer must articulate a
legitimate, non-discriminatory purpose for the adverse employment
decision taken against the employee.

Plaintiff’s Response

If the employer can articulate a non-discriminatory purpose for the adverse
employment decision that affected the plaintiff, the burden of proof then
shifts back to the plaintiff. In order to meet his burden, the plaintiff must
show that the employer’s stated reason for the discharge (or other adverse
action) is false and merely a pretext for discrimination.


An employee may recover wages, salary, employment benefits or other
compensation lost because of the violation, and actual monetary losses
suffered by the employee with interest, reinstatement, and promotion and
reasonable attorney's fees and litigation fees.