What is the Family Medical Leave Act (FMLA)?**
The Family Medical Leave Act (FMLA) grants eligible employees up to 12 weeks of unpaid leave to employees for serious health conditions, to participate in early childrearing and the care of family members who have serious health conditions. The FMLA may permit an eligible employee to maintain their health insurance during such leave as if the employee was still working, however, the employee may still be required to pay their portion of the premiums. Further, under certain circumstances, if an employee does not return from FMLA leave, the employer may be entitled to recover the premiums it paid for the employee’s heath insurance during FMLA leave from the employee.
Upon return, the employee is generally entitled to be restored to their previous position, or to an “equivalent” position that is virtually identical to the original position with no reduction in pay, benefits and other employment related terms and conditions. However, there are exceptions. Generally, benefits like, paid-time-off (PTO), sick leave, vacation and/or seniority do not accrue during FMLA leave. An employer may require an employee to use all of their existing PTO, sick leave and vacation leave during FMLA leave.
What employees are eligible for FMLA Leave?** To what employers does the FMLA apply?**
As to private employers, the FMLA only applies to those with a minimum of 50 employees during 20 workweeks of the current or the preceding calendar year. The 50 employees must be located within a 75 mile radius from where the employee, who is seeking to avail him or herself of FMLA rights, is employed. Depending on the facts, a knowledgeable and experienced attorney may be able to arrive at the minimum number of employees by combining the employees of different entities using the joint employer, integrated enterprise and/or a single employer theories, or by arguing that certain employees have been wrongfully classified as independent contractors.
Gernally, for an employee, who works for an employer who is governed by the FMLA, to be eligible for FMLA leave he must have worked for the employer for a minimum of 12 months, and must have worked a minimum of 1,250 hours during the 12 months preceding the start date of their FMLA Leave. An eligible employee may take up to 12 weeks of unpaid leave in a 12 month period for the following:
- The employee is unable to work because of a “Serious Health Condition”;
- The employee is unable to work because he or she needs to provide care for certain immediate family members who are suffering from a “Serious Health Condition”;
- The birth of a child or to care for a newborn;
- The new placement with the employee of a child for adoption or foster care, and to care for the newly placed child; and/or
- If the employee experiences a qualifying exigency that arises out of the fact that certain immediate family members have been called to or is on active duty in the Armed Forces.
A “Serious Health Condition” is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a healthcare provider for a condition that either prevents the employee from performing the function of their job, or prevents the qualified family member from participating in school, work, or other daily activities. Subject to certain conditions, the continuing treatment may be met by a period of incapacity of more than three (3) consecutive calendar days combined with a least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment under FMLA as well.
In certain circumstances, if certain procedures are followed, an employer may elect not to reinstate certain highly-paid, salaried, “key” employees to their former position if reinstatement would cause “substantial and grievous economic injury” to the employer’s operations.
An employee who is the spouse, parent, child, or next of kin of a member of the Armed Forces who was injured in the line of duty (an “injured service member”) may be eligible for up to 26 weeks of FMLA leave in a 12-month period.
Does an employee have to take FMLA leave all at once?** What if a condition only flairs up occasionally or periodically?** Can an Employee take “Intermittent Leave”?**
Under certain circumstances, an eligible employee may work reduced hours or take leave intermittently under the FMLA when it is medically necessary because of a Serious Health Condition of the employee or of certain family members of the employee. An eligible employee may work reduced hours or take leave intermittently under the FMLA to care for a newborn or a newly placed adopted or foster child but only with the employer’s approval. Intermittent Leave will be deducted from an eligible employee’s total allotment of FMLA leave. An employer may require that an employee obtain a certification from a healthcare provider as to the need for a reduced schedule or Intermittent Leave (see below). An employer may temporarily transfer an employee to a job that better accommodates the employee’s Intermittent Leave and/or reduced schedule as long as the alternative position has equivalent pay and benefits.
How can an employee prove that he has a Serious Health Condition?** How can an employer verify that an employee has a Serious Health Condition?**
An employer may request a certification from a health care provider to verify the employee’s need for FMLA leave for a Serious Health Condition of the employee or certain family members of the employee. At a minimum the employee has 15 calendar days to provide the certification. The employer may request a second certification at the employer’s expense, from a healthcare provider of the employer’s choosing (with certain limitations). If the opinions of the employee’s medical provider, and the employer’s medical provider differ, the employer can require a third binding certification by a jointly approved medical provider at the employer’s expense. The types of health care providers who may provide certification of a Serious Health Condition may be limited. The Department of Labor has created several forms for use in the FMLA request and approval process.
How should an employee request FMLA leave?**
An employer may require an employee who would like to take FMLA leave to give: (1) 30 days’ notice of the need for FMLA leave when it is foreseeable; (2) notice “as soon as practicable” when the need for FMLA leave is not foreseeable; (3) information sufficient to put the employer on notice that the employee requires leave for reasons which would qualify the employee for FMLA leave. An employee does not specifically need to to identify that their request is based on the FMLA. They only have to state why leave is needed; and (4) if the employee wants leave to be counted as FMLA after-the-fact, where the employer is unaware of the employee’s need for FMLA leave, the employee must provide the employer with timely notice that the leave was taken for reasons covered by the FMLA.
What notice should an employer give an employee regarding the FMLA?**
An employer who is governed by the FMLA must do the following to notify their employees of their FMLA rights: (1) post a specific notice which has been approved by the Secretary of Labor; (2) explain the employee’s rights and obligations under the FMLA in their employee handbooks; (3) provide a written explanation of the employee’s rights and obligations under FMLA when an employee requests FMLA leave; (4) give written confirmation when granting FMLA leave which explains the employee’s specific rights and obligations related to their FMLA leave, and notifying the employee:
- that the time off for FMLA leave will be counted against the statutory annual FMLA allotment;
- of the requirement to provide medical certifications and the penalties for failing to do so;
- of the ability, if any, to use any available PTO, sick leave or vacation leave during FMLA leave;
- of any requirement for the employee to exhaust PTO, sick leave or vacation leave while on FMLA;
- of the employee’s requirement to pay the employee’s portion of their health insurance, if any, and directions as to how to make such payments;
- of the employee’s any requirement to present a fitness-for-duty certification, if any, before being reinstated to their position;
- of their right to be restored to their position after returning from FMLA leave;
- of the employee’s potential liability to reimburse the employer for health insurance premiums the employer paid during FMLA leave if the employee fails to return to work at the expiration of FMLA leave; and
- of whether the employee is qualified as a “key” employee, and, if so, under what circumstances the employee may not be permitted to return to his former position after FMLA leave.
What is FMLA Retaliation?** Is an Employer Prohibited from Retaliating Against an Employee? **
The law prohibits an employer from unlawfully retaliating against an employee or engaging in “Protected Activity.” The exercise of an employee’s rights under the FMLA, including, but not limited to, requesting FMLA leave and/or taking FMLA leave, is Protected Activity. Unlawful FMLA retaliation occurs when an employer takes a “Materially Adverse Action” against an employee for exercising or attempting to exercise his or her rights under the FMLA.
What Constitutes a Materially Adverse Action?**
A “Materially Adverse Action” is one that is harmful to the point that it could well dissuade a reasonable employee from exercising or attempting to exercise his or her rights under the FMLA. The requirement of materiality is intended to separate significant from trivial harms. Accordingly, this standard does not encompass the petty slights, minor annoyances, and simple lack of good manners that employees regularly encounter in the workplace. In determining whether an action is materially adverse, Courts look to indicia such as whether the action affected “job title, grade, hours, salary, or benefits” or caused “a diminution in prestige or a change in standing among co-workers.
How May an Employee Prove that their Employer Illegally Retaliated Against Them?**
There are two principal ways that an employee can prove that an employer retaliated against the employee:
- Direct Evidence of Retaliation.** Direct evidence of retaliation is evidence that, if believed, proves the fact of retaliatory intent without inference or presumption. Direct evidence of retaliation is usually found where an employer admits to the employee or someone else, verbally or in writing, that their intent or motive is to take a Materially Adverse Action (described above) against an employee because the employee exercised or attempted to exercise his or her rights under the FMLA. Further, direct evidence can be found where an employer denies an eligible employee’s request for FMLA leave for which the employee meets all of the statutory requirements.
- Circumstantial Evidence (the Burden Shifting Analysis).** Courts recognize that direct evidence of retaliation is rare. Accordingly, they developed a system whereby an employee may prove retaliation using “circumstantial evidence.” Circumstantial evidence is another form of evidence which relies on inferences to establish retaliation. One method that an employee may prove retaliation with circumstantial evidence is by proving that the employee: (1) engaged in Protected Activity under the FMLA; (2) the employer took a Materially Adverse Action against the employee; and (3) a “Causal Link” exists between the employee’s FMLA protected activity and the Materially Adverse Action. If the employee successfully establishes these elements, a presumption of retaliation is created. Proving these elements is known as establishing a “Prima Facie Case” of retaliation. It is then up to the employer to produce evidence of legitimate, non-retaliatory reasons for the Materially Adverse Action. If so, then the employee must show that the employer’s stated reasons were “pretext” or “pretextual,” meaning that they are untrue, unworthy of belief and/or made up to hide their true discriminatory intentions. If the employee is successful, the employee may win their case. To satisfy the Causal Link requirement, the employee must prove that but for engaging in Protected Activity, he or she would not have been suffered the Material Adverse Action. Evidence of the Causal Link may include, but is not limited to: (1) little or no lapse of time between the employee’s exercise or attempt to exercise of his or her rights under the FMLA and the Materially Adverse Action (for example: terminating an employee while they are on FMLA leave or shortly thereafter); (2) knowledge of the employee’s exercise or attempt to exercise of his or her rights under the FMLA by those making the decision regarding the Materially Adverse Action; (3) expression of a negative attitude towards the employee’s exercise or attempt to exercise of his or her rights under the FMLA; (4) failure to adhere to established company policies; (5) differential treatment in comparison to similarly situated employees; (6) evidence that the stated reason for the Materially Adverse Action was false; (7) making the employee work during FMLA leave; (8) not notifying the employee of his rights under the FMLA; (9) denying FMLA leave to an eligible employee; or (10) disciplining or giving an employee a negative review for FMLA related absences.
What are an Employer’s Defenses to a Claim of Retaliation?**
Generally.** An employer may have several defenses to a claim of retaliation. Some defenses are factually based, such as when an employer has proof that an employee’s description of the facts is not true. Sometimes, the employer may challenge whether the conduct or the resulting harm was sufficient to give rise to a statutory violation. Other times, the employer many challenge whether: the employer has a sufficient number of employees to be governed by the FMLA; the employee has worked enough time to be eligible for FMLA leave; the employee has a Serious Health Condition (where applicable); and/or the employee provided proper health care provider certifications. Many other defenses may be available depending on the circumstances.
How, when and to whom should an employee complain about FMLA retaliation?**
- Employer’s Internal Complaint Process.** An employee of a private employer may complain to the employer using the employer’s internal complaint procedures.
- Claims of FMLA Retaliation are Not filed with either the EEOC or TWC (There is no Requirement to “Exhaust Administrative Remedies”).** While some types of retaliation and discrimination claims require that a “Charge of Discrimination” (also used for retaliation) be timely filed with either the Equal Employment Opportunity Commission (“EEOC”) or the Texas Workforce Commission, Human Rights Division (“TWC”), as a prerequisite (an act which is required to be performed before the lawsuit is filed) to an employee bringing a lawsuit for retaliation under certain other statutes, there is no such requirement for FMLA retaliation. FMLA retaliation claims also do not require “Exhaustion of Administrative Remedies” (the timely and properly filing a Charge of Discrimination). However, FMLA retaliation claims are subject to a “Statute of Limitations.” A Statute of Limitations is a deadline by which a lawsuit must be filed or, otherwise, the right to bring a lawsuit may be forever forfeited. Accordingly, an attorney should always be consulted immediately without delay.
What Damages Can an Employee Get from a Private Employer Because of Retaliation? How Much Money can an Employee Get from an Employer Because of Retaliation?**
The following types of damages are non-exclusive, and may be available to an employee who wins a retaliation case depending on the facts of the case:
- Back Pay and Front Pay.** Back Pay and Front Pay compensate an employee for wages lost because of a retaliatory act. Back pay compensates the employee for wages lost up to the time of trial. Front pay compensates and employee for wages which are anticipated to be lost after trial.
- Lost Benefits.** An employee may be able to recover the value of benefits that he or she would have received if not for the employer’s retaliatory conduct.
- Liquidated Damages.** Liquidated damages doubling the total amount of compensation awarded, including pre-judgment interest. A court may reduce such an award, in its discretion, if the employer proves both that its actions were in good faith and that the employer had objectively reasonable grounds to believe that the act or omission did not violate the FMLA.
- Attorneys’ Fees & Costs.** An employer who is found to have retaliated against an employee may be ordered to pay the amount of the employee’s attorney’s fees.
- Other Remedies.** An employee may be entitled to other remedies as well.
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