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What You Need to Know about the Family and Medical Leave Act of 1993 (FMLA) and Were Afraid to Ask


The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid leave in a 12-month period. The leave can be taken for the birth, adoption, or foster placement of a child, the care of a family member with a serious health condition, or the employee’s own health condition.

What Actions by the Employer Are Unlawful Under the FMLA?

  • Denial of leave to an eligible employee.
  • Failure to provide health benefits during the leave.
  • Failure to reinstate the employee to the same or equivalent position at the end of the leave.
  • Discrimination or retaliation against an employee for requesting or taking FMLA leave.
  • Retaliation against an employee for participating in any investigation or proceeding related to the employer’s denial of the employee’s or anyone else’s FMLA rights.
  • Failure to keep records, post notices, and provide any information to the employee required by the FMLA.
  • Manipulation of the workforce to avoid obligations under the FMLA.

What Should an Employee Do if Their Employer Violates an Action Prohibited by the FMLA?

  • Seek legal assistance as soon as possible. While a written complaint must be filed within two years of the violation, do not delay. Obtaining legal assistance early can avoid possible complications.
  • If a lawsuit is filed, the employee may recover monetary damages or reinstatement of their position. Additionally, if the suit is successful, the employee can recover attorneys’ fees and costs.

What Happens if the Employee Has Medical Restrictions After FMLA Leave Ends?

  • If the employee can perform the essential functions of the job with a reasonable accommodation, the employee is protected under the Americans with Disabilities Act of 1990 (ADA).
  • In some instances, FMLA leave can be a reasonable accommodation under the ADA (for example, FMLA leave can be used when intermittent leave is necessary for a medical condition). In those cases, the employee is protected by both the FMLA and ADA.

What Happens if the Employee’s Job Requirements or Conditions Change While on FMLA Leave?

  • The employer’s obligation to reinstate the employee still applies to the changed position that was held by the employee.
  • The employer must provide a reasonable opportunity to take required training or a skills evaluation that was missed due to FMLA leave once the employee returns to work.

What Happens if There Was a Layoff While the Employee Was on FMLA Leave?

  • If the position was going to be eliminated regardless of FMLA leave or if the facility closed, the employee does not have a right to reinstatement. The employee is entitled to be treated equally to the other laid off employees, including any termination pay. (NOTE: Be aware that some employers will give a legal reason, such as a false “layoff,” to hide the true illegal one. This is known as a “pretext.”).
  • The employer is also prohibited from assigning an employee to an equivalent position that is targeted for elimination if the employee’s original position was not.

Does FMLA Leave Count as Absences?

  • The employer may count the time on FMLA leave as absences, but it may not be used against the employee for any disciplinary purposes.

Contact Weiler Law PLLC Today

As always, if you have any concerns about FMLA leave or are having difficulties obtaining FMLA leave or problems with your employer for having taken FMLA leave, you should seek legal assistance. FMLA leave is protected by Federal law.

When it comes to looking for legal help with any type of illegal employment discrimination, Weiler Law PLLC is here to help. Our team of attorneys understands the complexities involved in these cases and is dedicated to providing the best possible representation. We can work closely with you throughout the process to ensure that your rights are protected. Contact us online or call (480) 418-7878 today!

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