The Family and Medical Leave Act (“FMLA”), was signed into law in 1993. The FMLA is the first – and to date the only – nationwide law that provides a safety net for eligible employees to take time off from work without fear of losing their jobs.  

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What Does the FMLA Provide?

Eligible employees who work for "covered" employers may take up to 12 weeks off of work per year to care for themselves, a sick relative and/or to bond with a new child (through birth, adoption or foster care).

 

Who is Eligible to Take FMLA?

Any employ who:

1. Works for an employer who is covered by the law (private-sector employer with 50 or more employees; a public agency; or an elementary or secondary school.     

2. Has worked for a period of twelve months before requesting leave; and

3. Has completed 1,250 hours of work during the 12 month period preceding taking the leave.

 

Is FMLA Paid Leave?

No. The FMLA does not require an employer to pay the employee's salary while they are out on a leave. However, an employer must maintain the employee's benefits, including health insurance, in the same manner as if the employee was still employed. Family leave is paid under New York State’s Paid Leave program.

 

What Protections Does the FMLA Offer an Employee Requesting Leave?

1. An employer cannot interfere with the ability of an employee to take FMLA leave.  

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2.  An employer cannot retaliate in the terms and conditions of an employee’s job because they have taken FMLA leave.

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At the conclusion of the employees leave, the law requires that they be restored to the same or a substantially equivalent job. The employer cannot demote the employee while out on FMLA, lower their salary or in any other way diminish their job responsibilities or opportunities for advancement.  

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On the other hand, taking a leave does not protect an employee from adverse action unrelated to taking time off pursuant to the FMLA. For example, it is not illegal for an employee to lay off an employee who is out on an FMLA leave, as long as they would have selected that employee for termination regardless of their taking leave or their request to do so.  

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What Can I Do If My Employer Has Violated My Rights Under The FMLA?

If you think your employer has violated your FMLA rights and/or discriminated against you on the basis of gender, you should seek legal advice to help determine whether you have a legal claim and understand what options are available to you. You can speak to a member of our legal team by calling (888) 833-4363.