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Family and Medical Leave Act (FMLA) Violations

The Family and Medical Leave Act (FMLA) entitles employees to unpaid, job-protected leave in certain circumstances. Employers that deny employees leave and who terminate employees who are on FMLA leave can face civil liability, but they will also have strong defenses available in many cases.

The Family and Medical Leave Act (FMLA) is among the most well-known employee protection statutes. It is also among the most misunderstood. While the FMLA provides eligible employees with the right to job-protected leave in some cases, this protection is not absolute, and there are still various circumstances in which employers can deny leave, deny reinstatement, and terminate employees who take FMLA leave.

As with virtually all federal employee protection statutes, the key to FMLA compliance for employers is to (i) ensure that they implement appropriate employment policies and procedures, and (ii) only take adverse employment action based on factors unrelated to the exercise of their employees’ statutory rights. For example, while it is illegal to terminate an employee because he or she chooses to take FMLA leave, it is not illegal to terminate an employee while he or she is on FMLA leave if there is a legitimate (and well-documented) business reason for the termination.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden



John W. Sellers
John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena
Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (OIG)

Michael Koslow
Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan
Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern
Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

We Defend Employers in FMLA Litigation

At Oberheiden P.C., we defend employers in FMLA litigation. Our attorneys have extensive experience in the area of employer defense; and, unlike other law firms, our practice is devoted almost exclusively to federal matters. If your company is being accused of violating the FMLA, we can help, and we encourage you to contact us promptly for a confidential and complimentary case assessment with one of our senior attorneys.

Understanding Employees’ Rights (and Employers’ Obligations) Under the FMLA

As explained by the U.S. Department of Labor, “The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.” This includes unpaid, job-protected leave for up to 12 weeks in any 12-month period for the purposes of:

  • The birth of a child and caring for a newborn child within one year of birth;
  • The adoption of a child or placement of a child with the employee for foster care and caring for the child within one year of adoption or placement;
  • Caring for a spouse, child, or parent who has a serious health condition;
  • Recovering from a serious health condition that prevents the employee from performing the essential functions of his or her job; or,
  • “[A]ny qualifying exigency arising out of the fact that [an] employee’s spouse, [child], or parent is a covered military member on ‘covered active duty.'”

The FMLA also entitles employees to up to 26 weeks of unpaid, job-protected leave in circumstances in which an employee’s spouse, child, parent, or next of kin suffers a serious injury or illness as a covered servicemember. This is commonly known as “military caregiver leave.”

Establishing the Existence of a “Serious Health Condition”

Along with childbirth and childcare, the majority of FMLA claims involve employees who claim to suffer from a serious health condition or to have an eligible family member who is suffering from a serious health condition. The FMLA establishes specific requirements for what constitutes a “serious health condition,” and disputes will often arise as to whether an employee’s (or family member’s) condition qualifies the employee for job-protected leave. Under the FMLA, serious health conditions include (but are not necessarily limited to):

  • Conditions that require an overnight stay in a hospital or other medical facility;
  • Conditions that result in incapacity for more than three consecutive days and that require ongoing medical treatment;
  • Chronic conditions that cause periods of incapacity and that require medical treatment at least twice annually; and,
  • Pregnancy, with FMLA leave being authorized for events and conditions including, “prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest.”

When an employee files for FMLA leave based on a serious health condition, the employer is not required to take the employee at his or her word. Rather, employers are entitled to request proof of the serious health condition in the form of a medical certification from the employee’s doctor. Employees have up to 15 days to supply a medical certification (upon request), and employers have the right to challenge the sufficiency and validity of their employees’ medical certifications. This includes the right to:

  • Request that employees cure deficiencies in incomplete medical certifications; and
  • Request that employees obtain second (or third) medical opinions at the employer’s expense.

In both cases, however, employers’ requests must be reasonable, and they must not be intended to harass or unnecessarily burden their employees.

In many cases, disputes will arise because employees feel that they are being unfairly and improperly targeted as a result of requesting FMLA leave. Disputes can also arise out of employers’ efforts to contact employees’ healthcare providers—which is permitted, but which must be undertaken in strict compliance with the privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA). Disputes related to employees’ requests for FMLA leave can lead to litigation under the Americans with Disabilities Act (ADA) as well, particularly in cases in which an employee’s medical certification or personal statements disclose the existence of disabling condition.

The Limited Protections Afforded to Employees on FMLA Leave

Under the FMLA, eligible employees are entitled to unpaid, job-protected leave, and they are eligible for reinstatement (or “job restoration”) upon their return to work. However, not all employees qualify, and employers are not required to reinstate employees following periods of FMLA leave in all cases.

Covered Employers

In the private sector, the FMLA applies only to employers that have 50 or more employees during 20 or more weeks in the current or preceding calendar year. This includes companies classified as joint employers and that are successors in interest to prior covered employers.

Eligible Employees

In order to be eligible for the FMLA’s protections, an employee must have worked for a covered employer for at least 12 months and must have at least 1,250 hours of service during the most-recent 12-month period. The employee must also work at a location where the employer has at least 50 employees within 75 miles.

Job Restoration

Upon returning from FMLA leave, an eligible employee is entitled to reinstatement in his or her prior position or “an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.” This, however, assumes that such a position is available at the time of the employee’s return.

Termination of Employees on FMLA Leave

An employer can terminate an employee who is on FMLA leave for legitimate business purposes that are unrelated to the employee’s decision to exercise his or her statutory rights. These purposes include, but are not limited to, downsizing, closure of facilities, and for-cause termination based on the employee’s performance prior to going on leave.

Defending Against Allegations of FMLA Violations

With these limitations on employees’ FMLA rights in mind, there are several viable defenses to allegations of employer violations of the Family and Medical Leave Act. Of course, in all cases, the specific defenses an employer has available will depend on the particular facts and circumstances involved in the employment dispute. Examples of defenses our attorneys use to protect employers in FMLA litigation include:

  • Employee Ineligibility – If an employee cannot prove 1,250 hours of service in the past 12 months, if he or she works at a location with less than 50 employees within 75 miles, or if any of the other eligibility criteria cannot be proven, then the employer is not liable under the FMLA.
  • Employee Fraud – If an employee fraudulently claims to have a serious medical condition, fraudulently claims recurrence of a chronic condition, or otherwise misrepresents any information in order to secure FMLA leave, then the employee is not entitled to the statute’s protections.
  • Employee Refusal of Job Position – If an employee is offered an equivalent job and refuses because he or she would prefer to be placed back into his or her prior position, then the employer is not liable for violating the FMLA’s job restoration provisions.
  • Valid Business Reason for Termination – If an employee is terminated for a valid business reason while on FMLA leave, then his or her termination does not violate the FMLA.
  • Statute of Limitation and Other Defenses – The FMLA is subject to a two-year statute of limitations in most cases, and employers will often have various other similar types of statutory defenses to liability as well.

This list is by no means exhaustive. There are numerous potential defenses to alleged FMLA violations, and companies that maintain thorough documentation will often be particularly well-positioned to defend against FMLA claims. For more information, schedule a complimentary case assessment at Oberheiden P.C. today.

Speak with an Employer Defense Attorney at Oberheiden P.C.

If you would like to speak with one of our firm’s senior attorneys about defending against an employee’s allegations under the FMLA, we encourage you to get in touch. For a complimentary case assessment, call 888-680-1745 or inquire online now.

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