If you have faced illness and needed to take some time out of work, then you are likely familiar with the Family and Medical Leave Act (FMLA) by now. Nothing is easy during times when life-altering illnesses strike, hence the US laws provide protection. In most cases, this means that your employer cannot ask you to perform anything during the leave or reinstate you to a lesser position due to the absence.
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However, if that happens you need to discuss your case with a New York employment attorney as soon as possible because you may be entitled to compensation.
The New York FMLA interference lawyers at Law Office of Yuriy Moshes, P.C. are available for free initial consultations. Call us at 888-445-0234 and let’s get to work.
What is the Family and Medical Leave Act (FMLA)?
The Family and Medical Leave Act (FMLA) is a US federal law providing qualifying US employees with the right to job-protected and unpaid leave resulting from qualified medical and family reasons.
When it was originally passed back in 1993, this Act allowed workers to take time off from work to bond to a new child, care for a family member who has a serious medical condition, or recover from their own health issues.
In 2008 the FMLA rules and regulations were expanded to cover military family leave. Employees may now take an unpaid leave do deal with issues arising from the deployment of a family member or to care for one who has returned home injured.
To sum it up, employees have the right to do the following under the FMLA:
- Take care of a new child, whether it is a newborn, an adopted child, or a child in foster care
- Take care of a seriously ill family member
- To recover from worker’s own serious illness
- Take care for an injured service member in the family
- To deal with other issues arising from military deployment
During and after the leave, FMLA entitles worker with the following rights:
- The right to return to the same job
- The same group health insurance benefits
- Reinstatement of all the benefits before the leave
- Protection against FMLA interference by the employer
- Protection against retaliation by an employer
- Intermittent leave in the case of worker’s own or family member’s serious health condition, such as an occasional visit to the doctor or temporary periods of incapacity
Who Is Eligible for FMLA?
When speaking about FMLA eligibility, it is important to make a distinction between the eligibility criteria for employers against those for employees. The FMLA applies only when eligibility requirements for both employers and employees are met. To ensure that you and your employer meet these requirements, make sure you talk to an experienced New York employment attorney to clarify it for you. Tell them about your situation, tell them about your employer, and they’ll tell you whether your case qualifies for compensation.
To give you an idea of what these criteria are, here is what you have to take into account:
- The employer must have at least 50 employees
- The employee must have worked for that employer at least one year, at least 1250 hours worked in the previous year at a facility that has at least 50 employees in the radius of 75 miles.
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If the employer does not grant your right to leave according to this law, it constitutes an FMLA interference and leads to penalties for the employer.
The 6 Most Common FMLA Violations by Employers
As with any other rights violation, employers violate FMLA rights according to certain patterns. Most of them do the same mistakes over and over again. In our experience, when a client calls or comes to our office and says that the employer violated their FMLA rights, most often it means any of the following:
- Denying coverage to an eligible employee. Some employers refuse to respect employee’s FMLA rights even when they both meet the eligibility criteria. When employees request their rights, these employers do not act according to the laws. Nevertheless, the law is clear – if you are a victim of such a violation, do not hesitate to demand what is rightfully yours.
- Failing to meet the notification requirements. There is a certain notice-giving procedure that both of you have to respect. You’ll learn more about that in the rest of this article. As for now, it is important to know that employers sometimes fail to meet these requirements.
- Asking employees on leave to perform work. When you are on leave, the employer must not demand you to do any kind of work. It doesn’t matter whether they offer payment for the work or not – they should not ask for any work while you are making a bond with your new child or taking care of your own or a close person’s medical condition.
- Reinstating an employee to a lesser position. Sometimes everything goes well before and during the leave, but not after it. Some employees end up placed in a lesser position as a consequence of their leave. That’s against the law. If you happen to be a victim of such behavior, call us to discuss your situation.
- Counting the FMLA leave toward excessive absences. The FMLA leave does not count as a regular absence from work. It is an extraordinary absence. Do not let your employer count it as a regular one.
- Terminating an employee unable to return to work. Your employer may terminate your employment with them only due to reasons unrelated to the FMLA leave. Any other termination is against the law. Of course, in the termination notice, they may give other reasons for the termination, but if you believe that it wasn’t just and that the leave is the real reasons for being terminated, talk to a lawyer to make sure that your rights have been violated and that you are entitled to compensation and being returned to work.
Keep in mind that this is not an exhaustive list of all the violations employers do. We receive different kinds of cases on a regular basis, so if you couldn’t recognize your case in the circumstances described above, just talk to a lawyer.
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If you think you became a victim to an unreasonable employer who has violated your FMLA rights you need an experienced New York FMLA lawyer to help you build a strong case against them and win it. Get a free consultation
Employee Notice and Certification Requirements Under the FMLA
To enjoy your FMLA rights, you have to hand your employer a leave notice. It is an FMLA leave requirement to do so. You can give it in writing or verbally. You can also send it by mail, email, fax, or phone. If you are not able to give the notice, a spokesperson may give it on your behalf.
Ensure to provide enough information to let your employer know that the reasons for your leave requests are covered by the FMLA. You don’t have to mention the FMLA or any other law in the notice, though. It is enough to state the reasons that are covered by it.
Having said that, it is enough to tell them that you need time off for parenting, taking care of a close person who is ill, or you have military family obligations. If you know your rights under this law, there are no reasons to be shy to demand what is rightfully yours. It is enough to know that you are entitled to unpaid absence and that you have to give notice to the employer.
On the other hand, the employer has the right to ask you to provide certifications that prove the reasons behind your leave notice. There are four main types of certifications that employers may request:
- Certification of your own serious health condition, including information on your medical information, the work restrictions due to that situation, etc.
- Certification of the health condition of the family member you need to take care of, including, among others, information about how long he or she would need help from another person
- Certification on your need for military caregiver leave, including information on the health condition of the family member, their military duty, and so on, and
- Certification of your urgent need to take the leave, providing information about your particular request.
Your employer may request the relevant certification in any case. Typically, both you and your health care provider will have to provide information to complete the form. Keep in mind that once your employer demands the certification, you’ll have 15 days to complete the form and hand it to them, unless it is not possible (if, for example, your doctor is not available).
Your Steps If You Face FMLA Violations by Employers
So, you think that your FMLA rights have been violated and now you are wondering what to do next. We suggest you call a New York employment attorney before doing anything else.
However, you have two options:
- File a complaint with the Secretary of Labor. Fill the FMLA violation complaint form, submit to the Secretary, and wait for the decision. If they request some additional information from you, ensure to provide them.
- File an FMLA lawsuit. If you are sure that you can win this, you can file a lawsuit with the help of an FMLA attorney. You can file in any jurisdiction where courts are competent over the violations conducted by your employer. If considering to go this way, keep in mind that you can file a lawsuit within two years from the last action that constitutes an FMLA interference or within three years if the violation was willful.
New York FMLA Lawyers
If you or a loved one have been a victim to an unreasonable employer who has violated your FMLA rights you need an experienced New York FMLA lawyer to help you build a strong case against them and win it.
Depending on the circumstances of your case, your lawyer will let you know whether it is worth fighting. To determine that, call us at 888-445-0234 to discuss your legal matter. The initial consultation is free.
We represent clients on various fee structures, including reasonable hourly fee arrangements, contingency fee agreements in appropriate cases, and hybrid or mixed hourly and contingency fee structures.