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    3.  » FMLA Discrimination FAQs

FMLA Discrimination FAQs

Family and Medical Leave Act Frequently Asked Questions Regarding Discrimination

Here are a few common questions we get around the Family and Medical Leave Act (FMLA) and what is and isn’t allowed from employers:

What types of conditions qualify under the FMLA?

Family and Medical Leave Act Attorney: The legislative history of the FMLA provides that the definition of serious health condition “is broad and intended to cover various types of physical and mental conditions” and “is intended to cover conditions or illnesses that affect an employee’s health to the extent that he or she must be absent from work on a recurring basis or for more than a few days for treatment or recovery.” These conditions include:

  1. incapacity due to pregnancy and prenatal care;
  2. chronic serious health conditions such as asthma, diabetes, epilepsy, narcolepsy, migraines;
  3. permanent and/or long-term conditions for which treatment may not be effective, such as Alzheimer’s, strokes, ALS, terminal diseases; and
  4. to receive multiple treatments (including recovery periods) either for surgery after an accident or other injury or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment (such as dialysis, chemotherapy, etc.).

How do I get FMLA leave?

Family and Medical Leave Act Attorney: If you qualify for FMLA leave, the first obvious step is to ask your employer to take the leave. It is best to give your employer advance notice of this request, but if you become suddenly ill, a lack of notice is justifiable. Still, even in cases of emergency, you should seek to provide your employer with a request for the leave once the emergency has passed.

Can my boss request medical documentation and reports?

Family and Medical Leave Act Attorney: Yes. The company that you work for can require you to fill out medical documentation and request reports from your doctors as part of the process for qualifying for FMLA leave. Even after you have submitted this documentation and began your leave, your employer may in certain situations require you to provide additional documentation. Although this may make you feel like you are put on trial when you have a legitimate reason for the leave, it is always a good idea to provide your employer with the requested documents, provided of course, that employer requests documents that relate to the reason for which you requested the leave. However, after your employer receives any medical documentation, it must keep those records separate from your personnel file; and you may have a good retaliation case if a boss, manager, or supervisor improperly shares your files with anyone else.

Can my job make me wait to take medical leave?

Family and Medical Leave Act Attorney: No. Some companies will try and tell employees that this is not a good time to schedule surgery or leave to take care of a sick loved one. Your boss may tell you that you should not take medical leave during the busy season. Your boss may even combined threats with these statements, such as “Well, we cannot be down a person now. So, we’d have to replace you.” These tactics and threats are called FMLA interference and are patently unlawful. As long as you fulfill the qualifications for FMLA as they are described above, your employer cannot deny your right to take the leave when you and your doctor decide that you need it. And, if your qualify for FMLA leave, your boss cannot permanently replace you while you are on leave, even during a busy season.

Do I get my same job back after I take FMLA leave?

Family and Medical Leave Act Attorney: When you eventually return to your job, the FMLA protects the employment status you enjoyed before your leave. In other words, your employer is required to provide you with the same position, at the same rate of pay, and with the same benefits that you had before the leave.

Can I break up my FMLA leave into shorter periods of time?

Family Medical Leave Act Attorney: Yes. You have the right to take FMLA leave in multiple shorter periods if it is needed, provided that the sum of your absences from work does not exceed 12 weeks within 12 months.

What type of damages am I entitled to if my job violates the FMLA?

Family and Medical Leave Act Attorney: If your employer wrongfully denies your right to take FMLA leave, does not restore you to the employment status that you enjoyed before the leave, or retaliates against you in some other way, you likely have a right to bring suit under the FMLA. This means that you may be able to recover all monetary losses that resulted from your employer’s wrongful conduct as well as any interest that money would have accrued since the wrongful conduct took place. In addition, you may able to recover liquidated damages in an amount equal to your actual losses and/or the reinstatement of your job or promotion.

What should I do if my company violates Family Medical Leave laws?

Family and Medical Leave Act Attorney: Because the FMLA is a complicated piece of legislation, many employers use its complexity to their advantage and attempt to confuse employees about what their actual rights are. If you feel like you or someone you know has been wrongfully denied their rights under the FMLA, make sure that their rights are protected. Spitz, The Employee’s Law Firm. has extensive experience litigating various employment cases, including lawsuits that implicated violations of the FMLA. Contact us for immediate help through a FREE and CONFIDENTIAL initial consultation.

I was fired after asking for FMLA; can I sue? Do I have a claim for FMLA interference, FMLA retaliation, or wrongful termination?

Family and Medical Leave Act Attorney: Our employment attorneys have provided as much information as we possibly can on this website, but your particular chances to prevail on a claim for FMLA interference, FMLA retaliation, and wrongful termination cannot be properly evaluated without a discussion regarding the facts relating to your termination and employment situation. Because our employment law attorneys fight for employees’ rights every day, we offer a free initial consultation for Ohio claims. It is not worth guessing about your possible rights and claims when a call to the right attorney can get you the right answer.

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DISCLAIMER: These answers do not constitute legal advice or guidance.

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