The Family and Medical Leave Act provides eligible employees with unpaid, job-protected leave for certain family and medical reasons. When employees request or take leave, these workers have protections from FMLA interference and retaliation. This means that employers may not interfere with a worker’s rights to take FMLA leave and may not take adverse employment actions (e.g., write ups, demotions, terminations) against employees for exercising their rights under the FMLA.
Am I protected under the FMLA?
For employees to have protections under the FMLA, their employer must have a minimum of 50 employees within a 75-mile radius of the work location. Additionally, the employee must have worked for the employer for at least a year and must have worked at least 1,250 hours during that year. If all these conditions are not met, the employee may not be protected by the FMLA.
What type of leave is protected under the FMLA?
Employees protected under the FMLA are entitled to 12 weeks of unpaid leave in a 12-month period. Leave may be taken for: the birth of a child and to care for that child; to care for a newly adopted child or newly placed foster child; to care for the employee’s spouse, child, or parent who has a serious health condition; a serious health condition that makes the employee unable to work; or a qualifying exigency arising from the employee’s spouse’s, child’s, or parent’s “covered active duty.”
Further, the FMLA provides up to 26 weeks of protected leave to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, child, parent, or next of kin.
How do I request FMLA leave?
If you are an employee covered by the FMLA, you must be sure to properly request leave. Many employers will have very specific guidelines outlined in an employee handbook. If guidelines are not readily available, it is recommended that employees contact their employer’s human resources department. If there is no human resources department, workers should contact their immediate supervisors and make inquiries into the process.
Many employers require that employees complete specific paperwork, which often includes providing supporting medical documentation.
A failure to follow proper procedures outlined by an employer when requesting FMLA leave may leave an employee unprotected.
Can I be fired while on FMLA leave?
The answer to this question will depend on the employer’s reason for terminating the employee.
An employee absolutely may not be terminated BECAUSE he or she requested or took FMLA leave.
But, the request for FMLA leave or the taking of FMLA does not mean that an employee cannot be fired before taking leave, while on leave, or immediately after returning from leave, if the employer’s reason is something other than the leave itself. This means a worker can still be terminated for poor performance, workplace misconduct, or even during a company layoff.
What if I was fired while on FMLA and the reason the employer gave was false?
If an employee is fired after requesting FMLA leave, while on FMLA leave, or after returning from FMLA, the circumstances surrounding the termination should be seriously considered.
Employers won’t say I am firing Jane or John Doe for taking FMLA leave. Instead, they may allege some other reason for termination. For example, an employer may say the worker was fired for poor performance. However, this may be proven false if the employee had always received excellent performance reviews prior to taking FMLA leave. The employer may tell the employee they are being laid off. But the employee may learn that he or she was the only worker “laid off.” The employer may say the employee is being terminated for workplace misconduct. Yet, the alleged misconduct is something all the employees do, but no one has ever been terminated for it. Under circumstances where the employer’s reason for termination are questionable, the alleged reason may in fact be evidence of FMLA retaliation.
If you want to know more about your rights under the Family and Medical Leave Act or if you think your employer is retaliating against you for requesting or taking FMLA leave, our Texas Employment Lawyers are available for a consultation. Know your rights. Protect your rights.