FMLA - Retaliation for Medical Leave

The Family and Medical Leave Act protects against employers who retaliate against employees for taking leave or who interfere with an employee’s leave. Retaliation for taking leave could include failing to return you to the same or similar position you had before leave or terminating you. Interference includes pressuring you, directly or indirectly, to not take leave.  

The FMLA is a federal law that requires “covered employers” to provide “qualified employees” up to 12 weeks unpaid leave for taking care of their own or a family member’s “serious health condition.”  A spouse, son, daughter or parent of an employee who is a member of the military service can take up to 26 weeks of military caregiver or exigency leave.  FMLA applies for the birth of a child, whether you are the mother or father and for the placement of a child with you for adoption or foster care. 

  • A “covered employer” is an employer with 50 or more employees within 75 miles.
  • A “qualified employee” is an emloyee who was employed at least 12 months and who worked in excess of 1,250 hours in the previous 12 month period.

A serious medical condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.  Your own serious health condition must be such that you cannot perform the functions of your position.  A serious health condition includes conditions or illnesses that cause you or a family member to be absent from work on a recurring basis for more than a few days for treatment or recovery. 

Employees who exercise leave are entitled to reinstatement to the position they held before taking the leave or to an equivalent position. Employees do not have to say the magic words “FMLA” or “Family and Medical Leave Act” to qualify for FMLA leave. In most cases employees only need to put their employer on notice that their situation may qualify as an FMLA-protected event, and it is the employer’s responsibility to offer the employee FMLA leave.

Unfortunately, an employee’s medical leave can be disruptive to the employer and employees are treated with hostility while requesting leave or experience retaliation after during or after their return to the workplace. The employment lawyers at Baillon Thome Jozwiak & Wanta have represented numerous employees who have experienced retaliatory treatment at the workplace after asserting their FMLA rights and taking leave.  If you feel you are currently experiencing retaliation in the workplace or were terminated after taking FMLA leave, call one of our FMLA employment lawyers to discuss your potential case.