The Family Medical Leave Act (FMLA) provides covered employees the right to take unpaid leave for specific family and medical reasons with the continuation of group health insurance coverage.
The FMLA entitles eligible employees to take 12 weeks of job protected, unpaid leave within a 12 month period:
- For the birth of a child or to care for a child within one year of birth
- For the placement of an adopted or foster child within the first year of placement
- To care for an employee’s spouse or child who has a serious health condition
- For employees that are unable to perform essential functions of a job due to a serious health condition
- Up to 26 weeks for any qualifying exigency when an employee’s immediate family member is a covered military members on covered active duty
FMLA leave applies to employers with more than 50 employees within a 75 mile radius of the workplace. An employee must be employed for at least 12 months with a minimum of 1,250 hours logged in the 12 months leading up to the request for leave.
An employee must notify their employer of their need to take leave, providing sufficient information to let an employer discern whether FMLA applies, at which time an employer will provide information to the employee regarding FMLA leave.
An employee must provide a 30 day notice of the need for FMLA leave if the need is foreseeable such as the birth or placement of a child or leave for an upcoming surgery.
If need for leave is not foreseeable, providing notice of the need for leave as soon as practicable is required
If an employee wants to substitute paid leave available under company policy for unpaid FMLA leave, they must meet notice and procedural requirements of the company policy.
An employee must provide a 30 day notice of the need for FMLA leave if the need is foreseeable such as the birth or placement of a child or leave for an upcoming surgery.
If need for leave is not foreseeable, providing notice of the need for leave as soon as practicable is required
If an employee wants to substitute paid leave available under company policy for unpaid FMLA leave, they must meet notice and procedural requirements of the company policy.
FMLA Retaliation or Interference
Employers may not terminate or discriminate against an employee in retaliation for taking FMLA leave or interfere with the exercise of an employee’s rights under FMLA.
If an employer denies or otherwise interferes with an employee’s rights under FMLA, an employee must prove that he or she is an eligible employee employed by an eligible employer, who is entitled to take FMLA leave but denied the benefit.
FMLA Retaliation Claims
If an employee is subject to retaliation after requesting FMLA leave, they must prove an adverse job action was taken against them when they engaged in a statutorily protected activity (requesting FMLA leave) and that there is a causal connection between the activity and adverse job action (termination or other).
Unfortunately it is not that uncommon for an employer or supervisor to harbor resentment toward an employee who is absent from work despite their eligibility for FMLA leave. Consequently. It is important for an employee to keep meticulous records, documenting interactions with their employer regarding FMLA leave and their employment performance in genera leading up to the request. In the event an employee is subject to retaliation such as termination after requesting FMLA, the documentation can provide proof of a causal connection.
Contact an Experienced Employment Lawyer for Help
Working with an experienced employment law attorney when you are denied FMLA leave or are subject to retaliation can help you protect your rights. Disability discrimination, hostile work environment, retaliation under Americans with Disabilities Act (ADA) and applicable civil rights law are prohibited. Compensatory and punitive damages may be awarded in cases involving discrimination. Contact the Wisconsin employment benefits attorneys of Alan C. Olson & Associates for immediate assistance at 262-785-9606.
