Family Medical Leave Act (FMLA)

If you have been prevented from taking leave to care for yourself or a family member due to illness or the birth of a child, or have been subjected to retaliation for taking such leave, our Boston employment lawyers can assist you. The Family Medical Leave Act (FMLA) entitles eligible employees to take up to 12 work weeks per year of unpaid, job-protected leave for certain family or medical reasons. The law requires group health benefits to be maintained during the leave as if the employee continued to work in the position, and employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave.

To be eligible, an employee must have been employed by a covered employer for one year and have worked at least 1250 hours during that year. The law applies to all public agencies, including local, state, and federal employers and all private sector employers who employ 50 or more employees within 75 miles of the jobsite for at least 20 work weeks in the current or preceding calendar year. The definition of “employer” under the law includes any person who acts directly or indirectly in the interest of an employer and any successor in interest of an employer. See 29 U.S.C. § 2611(A)(ii).

An employee may take leave to care for a new child (birth or adopted); to care for a spouse, child, or parent due to a serious health condition; to care for him or herself due to a serious health condition that makes the employee unable to perform his or her job; or for a “qualifying exigency” arising out of the fact that a spouse, child, or parent of an employee is on active military duty. Leave for the birth or adoption of a child must be taken within 12 months of the birth or adoption and cannot be taken intermittently except upon agreement by the employer. For a serious health condition, employees may take leave intermittently or on a reduced leave schedule when it is shown to be medically necessary. An employee may elect, or the employer may require pursuant to its policies, to substitute accrued paid vacation leave or personal or sick days for any part of the 12-week leave guaranteed under the FMLA.

For a serious health condition, employers have the right to request a medical certification establishing that the employee has a serious health condition and also have the right to request a fitness-for-duty certification upon returning to work. Failure to provide a properly-requested certification can result in denial of FMLA leave or restoration to prior position.

Covered employers are required to notify employees of their FMLA rights by posting the information in a conspicuous location and including the information in employee handbooks or other written guidance on benefits distributed to employees. An employee need not request FMLA leave by name. When the employer becomes aware of information that leave may be FMLA-qualified, the employer must inform the employee of his or her rights under the law and, if the leave qualifies, notify the employee that leave has been designated and counted as FMLA leave.

It is unlawful for a covered employer “to interfere with, restrain, or deny the exercise of or the attempt to exercise” FMLA rights. An employee who has been unlawfully denied FMLA leave or who has been retaliated against for taking leave may be entitled to lost wages, benefits, monetary costs (such as costs of providing alternative care), interest, attorneys fees, and reinstatement. If an employee can prove that the employer’s conduct was unreasonable and not in good faith, he or she may also be able to obtain liquidated damages, meaning double damages.

In addition to the rights guaranteed by the FMLA, employees in Massachusetts are entitled to at least eight weeks of unpaid leave for the birth or adoption of a child under the Massachusetts Parental Leave law. While these rights might overlap with the FMLA in some circumstances depending on company policies, they can provide broader or additional protection to employees. The Parental Leave law applies to employers with six or more employees; employees at small business that are not subject to the FMLA are still protected under the parental leave law. In addition, if an employee exhausts his or her FMLA leave on a non-birth or adoption-related event, he or she will still be entitled to take eight weeks of leave for the birth or adoption of a child in the same year.

Although the FMLA has been in existence for over two decades, many employers, including sophisticated private companies, still do not follow it or advise employees correctly on it. This creates substantial stress on employees who have serious health issues or who have loved ones who are ill. We have represented clients with FMLA claims against both public and private employers and have achieved successful resolutions for them and their families, including substantial monetary settlements, reimbursement of attorneys’ fees, and/or reinstatement or promotion. If you believe your employer is violating your rights under the FMLA call Zalkind Duncan & Bernstein’s Boston employment lawyers at (617) 742-6020 to speak with an attorney.

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