The Problem

Life is uncertain. No one knows when illness will strike.There are times when an employee must take a leave of absence from work.


In some cases, the Family and Medical Leave Act applies to give the employee up to 12 weeks off of work (unpaid) to deal with either the employee’s own serious health condition or a family member’s serious health condition. If the employee is helping care for an injured military member, the employee may be eligible for even more leave.

Employers sometimes fail to comply with the FMLA. Many simpy don’t understand the FMLA and impose limits and restrictions on employee use of leave not allowed by the statute.


To be eligible for FMLA leave, an employee must have worked for the company for 12 months and worked over 1250 hours during that time.  And the employer must have 50 or more employees within a 75-mile radius of the worksite.

There are cases in which an employee is technically not eligible to take FMLA leave but the employer grants it anyway.  When the employer later tries to deny leave by arguing that the employee was not eligible for the FMLA leave, the law may prevent it from retroactively denying the previously approved FMLA leave.

Technicalities and Common Mistakes

When an employee seeks FMLA leave, there are strict requirements that both the employer and employee must meet.  There are limits as to the information that must be provided to the employer. There are timelines for how quickly the employer must respond to a request for leave and the information the employer must give the employee while that employee is out on leave.

Many mistakes occur during the FMLA leave process that lead to legal claims.  For example, if an employer refuses to provide required leave, or discourages the employee from taking it, this can create an FMLA interference claim.  Likewise, if an employee is pressured to perform some work duties while out on an approved FMLA leave, that also might be FMLA interference.

Many companies outsource handling FMLA leave to third parties or short-term disability providers. This leads to many mistakes and employees often have claims against their companies for the mistakes that occur in this scenario.

Return and Termination

People commonly think they cannot be fired while taking FMLA leave. It is not quite so simple. 

The employee’s job is supposed to be protected during approved FMLA leave and so the employee should be returned to the same job or an equivalent job. That may not happen. If the employee is a “key employee,” the rules are slightly different.

An employee can be terminated while using FMLA leave if the company has a legitimate and non-discriminatory reason for doing so.  Such termination can be risky for companies and many companies thus wait until the employee returns from leave to terminate the employee.

Employees often are discriminated or retaliated against after taking FMLA leave.  This may give rise to an FMLA retaliation claim.

Intermittent Leave

Intermittent leave is a particular problem area.  It is difficult for employers to administer and they don’t like it since the absences are unpredictable. Some employers even discourage employees from taking intermittent leave even though they legally are entitled do so.  Employees often do not understand their legal obligations when they are using intermittent leave and make mistakes that leave them unprotected.

FMLA vs. Short Term Disability

People commonly mistake the receipt of short-term disability benefits with FMLA protected leave.  These are two very different things.  Short-term disability is an insurance product that may pay an employee while that employee is out on a disability leave. But, short-term disability has nothing to do with an employee’s entitlement to FMLA leave.


Moving Forward

If you believe you have issue pertaining to family medical leave, contact us by clicking Tell Us About Your Problem and filling out the questionnaire.