FMLA

Under the Family and Medical Leave Act ("FMLA") employers, including public agencies, with 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year must provide 12 weeks of unpaid leave during any 12 month period for the birth or placement of a child, or because of the serious health condition of the employee, the employee's spouse, child or parent. (29 U.S.C. ss. 2611(4), 2612)

To be eligible for FMLA leave an employee must have been employed with the employer for at least 12 months and must have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave. (29 U.S.C. s. 2611(2))

In the case of an expected birth or placement, an employee must provide the employer with not less than 30 days' notice or as much notice as is practicable. In the case of planned medical treatment, the employee must make a reasonable effort to schedule the treatement so as not to unduly disrupt the operations of the employer and shall provide the employer with not less than 30 days' notice or as much notice as is practicable. (29 U.S.C. s. 2612(e))

An employer may require that an employee's leave to care for the employee's covered family member with a serious health condition, or due to the employee's own serious health condition that makes the employee unable to perform one or more of the essential functions of the employee's position, be supported by a certification issued by the health care provider of the employee or the employee's family member. An employer may also require that an employee's leave because of a qualifying exigency or to care for a covered servicemember with a serious injury or illness be supported by a certification. The employee must provide the requested certification to the employer within 15 calendar days after the employer's request, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification. (29 U.S.C. s. 2613) (29 CFR s. 825.305(a) & (b))

Except for health care benefits, all seniority and benefits are frozen until the employee returns from leave. The employer must maintain health care coverage for the duration of the leave on the same basis that it was provided before the leave began. (29 U.S.C. s. 2614)

Persons on leave due to serious medical conditions may have intermittent and reduced schedule leave when medically necessary. (29 U.S.C. s. 2612(b))

FMLA leave may be taken in periods of whole weeks, single days, hours, and in some cases even less than an hour. The employer must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour. (DOL Fact Sheet #28I)

An employee out on a FMLA leave is entitled on return from such leave to be restored to the position of employment held by the employee when the leave commenced or to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment. (29 U.S.C. s. 2614(a))

The Department of Labor has developed optional-use forms which can be used by employers to provide required notices to employees and by employees to provide certification of their need for leave due to an FMLA qualifying reason. (FMLA Forms)

It is unlawful for an employer to interfere with, restrain, deny or retaliate against an employee who is exercising or attempting to exercise the right to take FMLA leave. (29 U.S.C. s. 2615) An employee who prevails in such an action can recover lost wages and benefits, any actual monetary losses sustained, an additional amount as liquidated damages equal to the foregoing except where the employer proves to the satisfaction of the court that the violation occurred in good faith and that the employer had reasonable grounds for believing that its actions were not a violation, and reasonable attorney's fees. (29 U.S.C. s. 2617(a))

To be enforced, a complaint must be filed with the Secretay of Labor and/or a court no more than two years after the action which is alleged to be a violation of the FMLA occurred, or three years in the case of a wilful violation. (29 U.S.C. s. 2617(c)) (29 CFR s. 825.401)

In O'Rourke v. Tiffany and Co., 988 F.3d 23 (1st Cir. 2021), the plaintiff claimed that her former employer retaliated against her for exercising her rights under the FMLA and discriminated against her on the basis of a disability in violation of the Americans with Disabilities Act (ADA), when it eliminated her position. The First Circuit concluded that the employee failed to present any evidence that her employer's decision to eliminate her position was motivated by the requisite discriminatory or retaliatory intent necessary to pursue such claims. The Court reasoned that discriminatory or retaliatory intent on the part of the plaintiff's employer could not be derived from mere fact that it consulted with counsel before eliminating her position.

In McArdle v. Town of Dracut, 732 F.3d 30 (1st Cir. 2013), the First Circuit held that it is not clear that one not entitled to take FMLA leave avails himself of a protected right when requesting to take such leave. The Court stated that it is not convinced that an employee who is ineligible for FMLA leave can never bring a retaliation claim.