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Medical Leave: Can I Be Discouraged From Using FMLA Leave?

On Behalf of | Dec 3, 2013 | Family Medical Leave Claims |

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The birth of a new child is an exciting time, but it also requires a lot of work! Fortunately, the Family Medical Leave Act (“FMLA”) offers unpaid, job protected leave for new mothers to recover from childbirth and transition into motherhood. Unfortunately, some employers have tried to discourage women (and even expecting fathers) from excising this right to leave. If you were discouraged by an employer from taking FMLA leave, you may be entitled to recovery.

Under FMLA, eligible employees are entitled to take 12 workweeks of leave in a 12-month period for the birth of a child and to care for the newborn child within one year of birth. An employee is eligible if he or she has worked for the same employer for at least 12 months, has worked at least 1,2500 hours over the past twelve months, and works at a location where the company employs 50 or more employees within 75 miles. FMLA leave is very helpful to a new parent, as it gives the new parent an opportunity to care for and bond with the child during the critical first weeks of the child’s development. Employers are prohibited from coercing or attempting to coerce an employee from the right to take FMLA leave. Employees that do so may be held liable to the employee for “discouragement.”

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How can you tell when your employer’s actions are discouragement? The answer is not always clear, and there are not a lot of court opinions that shed light on this issue. However, a recent federal district court in New York has determined that mere statements by an employer may be discouragement and in violation of FMLA regulations. Specifically, in Bailey Stoler et al v. Institute for Integrative Nutrition and Joshua Rosenthal, a class of plaintiffs filed a complaint alleging that their employer was discouraging them from taking their entitled FMLA leave. One plaintiff employee stated that, prior to her leave, the employer said to her “that she should consider her priorities in planning her leave and return to work” and that “her position might change when she returned.” The court held such comments by her employer are sufficient to raise a viable claim for discouragement, stating, “Taken in totality, it is plausible that such comments were designed to coerce [the employee] to leave her employment or to discourage [the employee] from using her leave.” The court further stated that, “Plaintiff’s allegations adequately allege that Defendants began the process of demoting Plaintiff well before her FMLA leave ran out.” This shows that mere general statements may be enough to allege discouragement.

Another interesting holding from the court in Bailey Stoler is that a request for “maternity leave” is sufficient to also be a request for FMLA leave. To exercise her rights under FMLA, an employee must give notice to an employer of her intent to take FMLA leave. Under the holding in Bailey Stoler, all an employee must do is ask for maternity leave; there is no need to specify the leave as FMLA. Many eligible pregnant employees are not aware of their rights to leave or that they should specifically request “FMLA leave.” This holding protects these women and gives them a right to seek recovery from an employer attempting to deny them this right or retaliate against them for exercising it. Even broader, it follows a line of cases that does not require an employee to use magic words in order to exercise their rights under the FMLA.

Don’t let your employer deny you your rights under FMLA. If you are in a situation where your employer has made any statements suggesting that your job is not safe if you exercise your rights under FMLA, you may be entitled to recovery. You may also be entitled to recovery if you requested maternity leave, but were denied FMLA leave for failure to request it by name.

Lawyer Answers: “How do I ask for or get medical leave?”, “Am I qualified for medical leave under the FMLA?” and “Can my job stop me from taking medical leave?”

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA), you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I …”, “what should I do when …”, “can my boss…” or “is my employer allowed to…”, your best option is to contact an Ohio attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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