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Is it time to hire an FMLA attorney?

On Behalf of | Jun 15, 2023 | FMLA |

Is it time to meet with and hire an FMLA attorney?


Thanks to the federal Family and Medical Leave Act (FMLA), and the equivalent state and D.C. FMLA laws, eligible employees can take up to 12 weeks of unpaid leave to care for a sick or injured family member and return to work without facing any penalty or loss of their job. However, some employers do not comply with their duties and, in the worst cases, retaliate against workers who take extended absences.

Common FMLA violations by employers

Things become problematic when an employer does not fully understand or refuses to understand, the FMLA obligations. Here are a few examples of FMLA violations:

Failing to acknowledge the request as eligible under FMLA

The FMLA outlines valid conditions under which employees may take an extended unpaid leave. Managers and HR staff are sometimes unable to appropriately define a leave as eligible. In fact, it is on the employer to educate its managers regarding the type of leaves its employees are entitled to.

Making the employee work while on leave

FMLA leave is unpaid. Moreover, because most FMLA leaves are for medical emergencies, it is reasonable to assume that the employee will be unable to concentrate on work while on leave.

Some employers may encourage the employee to work from home instead of going on a leave. But because the employee is so preoccupied, some end up being unable to perform fully and in danger of losing their jobs. At times, this kind of situation may constitute illegal conduct.

Pestering or pressuring an employee who is on leave

The act does not specify any limitations on how companies and workers can interact while an employee is on FMLA leave. However, it is advisable not to bother the employee. Otherwise, work-related discussions may give rise to a wage and hour lawsuit.

Additionally, urging the employee to come back to work earlier than expected could also be interpreted as preventing them from exercising their rights.

Denying the employee their previous position or one at the same level

The FMLA protects employees from losing their jobs. Even if the position is no longer available, the employer must provide an equivalent replacement. Furthermore, the employer must continue to provide the same benefits, location and compensation.

Employers tend to be inflexible with taking leaves because they believe it disrupts their business operations. Bringing these issues to the attention of HR can sometimes help, but because of the urgency of the situation, sometimes it is best to speak with an attorney. An employment attorney may better advise an employee on their legal rights and options.

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