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What to Do If Your Employer Retaliates Against You for FMLA Leave

Your health and family should always come before work. After all, your job is something you do to support your life, not the other way around. However, many employers don’t see things that way. Too many companies are willing to fire employees just because they need to take time off to recover from an illness or care for a sick family member. 

That’s why the federal government implemented the Family and Medical Leave Act (FMLA). Under this law, covered employers are obligated to give workers a certain amount of time off to handle health issues. Unfortunately, some employers punish workers for taking time off anyway. 

The FMLA takes this possibility into account, though. Retaliating against workers for taking FMLA leave is against the law. If your employer has punished you in some way for taking your legally protected leave, you may have grounds to take legal action. 

What Is FMLA Leave?

FMLA leave is federally protected unpaid time off offered to covered workers who experience specific family or health circumstances. Under the FMLA, eligible employees may receive up to 12 workweeks of unpaid time off per 12-month period for reasons including:

  • The birth of a child, the adoption of a child, or the placement of a foster child.
  • Caring for a spouse, parent, or child’s serious health condition
  • The employee’s own serious health condition that prevents them from doing the tasks required by their job.
  • Qualifying exigencies for a spouse’s, parent’s, or child’s status as a covered active duty military servicemember. 

Workers may also take up to 26 workweeks of unpaid time off to care for a seriously ill or injured spouse, child, or parent if that person is a military servicemember. 

It is important to note that any uses of this time draw on the same bank. However, the 12-month period is not tied to the calendar year. If you need to take four weeks of time in June to heal after an injury, you will only have eight weeks remaining if you need to care for a family member until June of the following year. In June, your bank of leave will refresh, and you will once again have 12 full weeks to use if necessary. 

Employers may not take adverse employment action against workers who request and take FMLA leave. They may not make it unnecessarily challenging to request this time, nor can they place conditions on the use of the leave, such as meeting specific work goals. More importantly, when the worker returns, they must be given their job back, or a job that is functionally indistinguishable from their old one.

Who Is Eligible for FMLA Leave?

Not every worker is eligible for FMLA leave, but many are. Employees must work for covered organizations and meet eligibility requirements themselves. Covered organizations include:

  • Private employers who have maintained a staff of 50 or more employees for at least 20 workweeks in the past two calendar years
  • Any public agency, including federal, state, and local agencies 
  • Any public or private school system

If your employer meets these qualifications, you must also meet the following criteria:

  • You’ve worked for the organization for at least 12 months in total
  • You performed at least 1250 hours of work for your employer in the 12 months before the start of the requested time
  • Your workplace is within at least 75 miles of 49 other employees

For example, you may not be eligible if your employer has 50 employees but only one employee per state. However, if the organization has ten employees per location and five locations within a 75-mile radius, you are covered. 

If you meet these requirements, you can request protected leave, and your employer may not take any adverse employment action against you for taking the time you need. 

Examples of Protected Leave Retaliation

“Adverse employment action” is any negative action your employer takes against you. If an employer takes adverse action against you for requesting or taking leave, that is a form of retaliation and is against the law. If you’re wondering, “can my boss fire me for taking FMLA leave?” The answer is simple: no. They cannot fire you before, during, or after your leave because of your request or absence. That is wrongful termination and against the law.

However, being fired during FMLA leave is just one example of possible retaliation. Other examples include:

  • Cutting your hours before or after your time off because you took protected time away
  • Cutting your pay or benefits or pausing your benefits while you are away
  • Refusing to give you the same job you had before you left if that position still exists
  • Refusing to provide you with a similar role to the job you had before you left if your previous role no longer exists
  • Giving you a position with worse or different hours, responsibilities, or pay when you return
  • Withholding opportunities like training or new clients because you have requested time off

If your employer uses any of these negative actions to punish you for taking FMLA time off, they are violating the law, and you may have grounds to take legal action. 

Fighting Back Against FMLA Leave Retaliation

If you were fired during FMLA leave or your employer otherwise retaliated against you, your right to fair employment has been violated. You have grounds to take legal action and pursue compensation for your financial losses. You should first consult with an expert employment law attorney like the proven associates at the Law Offices of Todd M. Friedman. 

Our skilled lawyers are prepared to help you file your claim and negotiate or litigate the matter as necessary. We pride ourselves on helping our clients receive the best possible outcome from these cases, including compensation and justice for their suffering. Learn more by scheduling your consultation today.