When You Should Talk to an FMLA Lawyer

Here's when it makes sense to hire an employment lawyer.

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Do you need to talk to a lawyer about taking medical or disability-related leave under the Family and Medical Leave Act (FMLA)? For most employees, the answer should be "no." The FMLA, a federal law that requires employers to give eligible employees time off for health and caretaking reasons, is intended to be employee-friendly. When you ask for time off that might qualify for FMLA leave, your employer is supposed to give you information about your rights and obligations under the law, provide the forms you will have to complete to take time off, and let you know the rules for maintaining your health insurance and returning to work.

But not every employer knows the rules—and not every employer follows them. If, for example, your employer denies you time off, counts your FMLA leave against you, pressures you to return to work early, or refuses to return you to your job when your leave is over, you should speak to an experienced employment lawyer to find out how to assert your rights. Here are some of the ways employers violate the FMLA; if you are facing one of these situations, you should consider seeking some legal advice.

If You Are Denied Medical or Disability-Related Leave

Did your employer refuse to let you take FMLA leave to which you were legally entitled? Here are a few ways an employer might break the law regarding eligibility for leave:

  • Discouraging you from taking time off. If your manager, HR representative, or supervisor responded to your request for FMLA leave by saying, "It's really not a good time right now," "I can't promise you'll get your job back if you take time off," or "I'll have to consider your leave when I'm deciding who gets raises this year," you may have an FMLA claim. Employers cannot try to talk employees out of using their rights under the FMLA, whether through subtle disapproval or outright threats. And, your employer may not count your FMLA leave against you when it's time to make decisions about raises, promotions, and so on. The FMLA gives you the right to take time off without penalty, and to be returned to your position when your leave is through.
  • Requiring too much notice. The FMLA requires you to give at least 30 days' notice of "foreseeable" leave (for example, if you have surgery planned well in advance). If you need leave for an unforeseeable reason (such as a premature birth or emergency medical treatment), you have to give only as much notice as is practical under the circumstances. Some employers try to require employees to give more notice than the law allows, or deny requests for leave that they should grant. (Learn more about your notice obligations under the FMLA.)
  • Requiring a particular type of notice. You don't have to mention the FMLA by name or ask for "family and medical leave" to be covered by the FMLA. If you say something to your manager, orally or in writing, that reasonably informs the company that you need time off for parenting or pregnancy (or another serious health condition or military family obligations), it's your employer's job to figure out that you are protected by the FMLA.
  • Miscounting your time worked. You are eligible for FMLA leave if you worked for your employer for 12 months, and for 1,250 hours in the year preceding your leave. Some employers count your hours worked as of the date you request leave, but this is incorrect: You must meet the hours worked requirement as of the date your leave will begin. If you request leave a month or more in advance, this will add many hours to your total by the time you take the leave.

If Your Employer Violates the FMLA During Your Leave

Here are some common ways employers violate employee rights while employees are out on FMLA leave:

  • Cutting off insurance. You have the right to keep your group health insurance benefits during your FMLA leave, as long as you keep paying your usual share of the premiums. Your employer must give you written notice, in advance, of how and when you must pay your premiums. (Because FMLA leave is unpaid, employer's usual method of withholding premium payments from paychecks won't work.) Your employer may cut off your coverage only if you are more than 30 days late with your payment and you receive notice and an opportunity to correct the problem.
  • Pestering you to come back. Your employer may check in with you periodically to find out about your plans to return to work. But if your employer pressures you to return early, asks you to work during your leave, or won't leave you alone, you should talk to a lawyer.

If You Have Trouble Getting Your Job Back

Under the FMLA, an employer may not count your FMLA leave against you or retaliate against you for taking advantage of your rights under the law. If your employer fires or disciplines you for taking FMLA leave, you should talk to a lawyer right away. Here are a handful of other common problems in the reinstatement process:

  • Delaying your return to work. As long as you give notice two days in advance that you will return to work, your employer must put you back in your old job immediately. Postponing your return to work for the employer's convenience is not allowed under the law.
  • Reinstating you to a different position. The FMLA requires employers to put you back in the same position you held when you took leave, or in an equivalent position. An equivalent position must be nearly identical to your prior job, in duties, pay, benefits, shift assignments, work site, and other particulars. Your employer may not, for example, assign you to a different job because it hired a replacement while you were on leave.
  • Failing to restore all of your benefits. During your time off, your employer has to continue only your group health insurance benefits, not the rest of your benefits. However, when you return to work, all of your other benefits must be reinstated immediately, without a waiting period, medical examination, or other qualifying hurdles.
  • Mistakenly denying reinstatement to you as a "key employee." The FMLA allows employers to deny reinstatement to key employees—salaried employees who are among the most well-paid 10% of the company's workforce within 75 miles of where you work—if returning them to work would cause a "substantial and grievous" economic injury to the company. This exception is intended to be very narrow, but some employers try to argue that many employees are indispensable and impossible to reinstate (because they had to hire replacements). Your company must inform you, before your leave starts, if you are a key employee. Once you receive this notice, you should consider talking to a lawyer to find out whether you can legally be denied reinstatement and what to do about it.
  • Counting your leave against you. Once you are back from FMLA leave, your time off may not be held against you. You may not be disciplined for taking FMLA leave in any way; this includes counting your leave against you in a no-fault attendance policy. If you would have received a cost-of-living raise or automatic bonus when you were out on leave, you are entitled to that money.

What to Do Next

If you think your employer has violated the FMLA, you should schedule a consultation with an experienced lawyer. A lawyer can review your situation, identify any legal problems in the way your employer treated you, and help you decide what to do next. For example, you might want the lawyer to coach you on how to talk to your manager, to write a letter to your employer on your behalf, or even to file a lawsuit in court. Many employment lawyers charge you only if you win your claim, so you may not need to pay a lawyer up front.

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